Human beings are hard-wired to believe in fairness and justice. Psychological studies show that all but the most psychopathic of people feel a strong feeling of disgust when they witness something “unfair” or “unjust.”
What does that mean? Well, it means you can fire someone for any reason (right or wrong) or no reason at all, so long as it is not an illegal discrimination. For example, you can fire someone because you think their laugh is annoying even if they are good at their job. But you can’t fire someone for Tourette’s Syndrome because you think their tick is annoying because that is a disability discrimination.
This sometimes comes up when one employee accuses another employee of bad behavior. For example, say a woman accuses a man of sexual harassment. The man denies it. At this point, the employer must make sure that the woman is safe and not being forced to endure unwanted harassment and touching.
The employer is not required to determine whether the man is innocent before deciding to fire him. The employer does not need to pretend it is NCIS before taking action to protect the female (and itself).
That means that sometimes an innocent person will get fired. Yes, it’s unfair. That does not make it illegal.
This video explains more.
One employee has accused another of sexual harassment. Is it wrongful termination if I fire the accused employee and the allegations later turn out to be false?
No. In fact, it’s probably safer for you to remove the alleged harasser.
It may seem unfair for you to fire someone without knowing for sure that the allegations are true.
But the employer is not required to find out the truth in an investigation.
Employers are not investigative detectives and shouldn’t try to act like one.
When employment is “at will,” you can terminate an employee for any reason without repercussion, even if allegations are later shown to be false.
But when an employee levels an accusation of sexual harassment and the employer does nothing, then you may become liable for a “hostile work environment” for not protecting the harassed employee.
Rather than expose yourself to such liability, it may be better to terminate the accused employee.
You must use good judgment in these sensitive situations and there is not always one right answer.
Ask us how we can keep you safe from lawsuits with our Employer Protection Package. For a consultation call 800-449-8992 or email us at[email protected].
I remember going the the ABA’s employment law boondoggle in 2010. Occasionally, I like to get my law geek on.
On the second day, I attended a panel session on emerging sex discrimination issues. One of the panel lawyers was a transgender woman. We were discussing the difference between sex and gender.
In brief, sex is the state of your genitalia (which is no longer entirely dictated by chromosomes). Gender is what you feel inside.
At that moment, I realized that the sex and gender discrimination laws do not specify that they only protect people born one sex or another.
And there is no place where this was going to be a bigger problem than the bathroom. (Edit: Since writing and publishing this blog in 2015, this has come true.)
I started imagining scenarios where a person in the middle of a sex-transition would have to reassign bathrooms. I could see situations where the women might object, or claim to feel unsafe or sexually harassed. (Edit: This has happened now.)
I could see situations where the transgender person would claim to be harassed, rejected or cat-called by male co-workers, and that becoming a sexual harassment case. (Edit: This has happened now.)
I could see situation where an employer, struggling to make everyone happy, makes no one happy. Perhaps the employer makes a third bathroom for the transgender employee, and that person feels singled out as a result.
The relative population of transgender people is small. But recent publicity regarding their civil rights has expanded the law.
For example, the EEOC ruled in June 2015 that a transgender person has a right to use the bathroom that is consistent with their expressed identity. Policies otherwise are discriminatory and prohibited under Title VII. The EEOC’s position is a harbinger of where the law will go either by courts or Congress.
Sex reassignment surgery is none of the employer’s business, so a person can state their preferred gender and the employer must allow for it, without inquiring as to the state of their genitalia.
There will undoubtedly be other employees who will feel uncomfortable about this. It is fairly predictable that there will be women who feel threatened by a biological man (sex) who identifies as a woman (gender) entering the woman’s bathroom.
It is also predictable that this will create religious accommodation issues. Some religions are stricter about segregation between the sexes than others.
Who knew the potty was so complicated?
As usual, the employer is caught in betwixt and between competing human interests. So what do you do?
Well, at this point, the employer should allow people to use the bathroom of their choice. So the employer is going to have to come up with additional accommodations to avoid religious or sexual harassment allegations.
One such accommodation would be to create a third bathroom that anyone who wishes to be “private” can use. Or get rid of segregation of the bathrooms altogether if that is possible.
For many offices, changing the bathroom construction just won’t be practical. For those employers, you will have to counsel people to get along and navigate disputes through diplomacy. Sometimes you will have to tell an employee to accept the use of the bathroom by a transgender person and to work around it.
The employer should not (and in most cases cannot) challenge someone’s stated gender identity and must treat them accordingly, no matter how it competes with the rights, interests and sensibilities of other employees.
We can all argue about whether this is fair or not. But it’s the facts. On balance, it is much more likely that the transgender person will be the harassed rather than the harasser. So balance your policies towards accommodating the transgender person. And respond carefully to all allegations of harassment or predatory behavior.
Sexual harassment claims against your company can result in negative publicity, enormous fines, time-consuming and expensive litigation, lowered employee morale, and reduced productivity in the workplace. If your business is facing sexual harassment allegations by a current or former employee, you need immediate legal support from a knowledgeable and experienced employment law lawyer, such as those of Bellatrix PC.
Whether you are already facing a legal claim, or are simply concerned about compliance with FEHA and Title VII requirements, our attorneys are prepared to assist you. We can represent and defend your business in civil litigation proceedings, or review and revise your current policies and procedures with our business risk review. To arrange a private consultation, call our business attorneys right away at (800) 449-8992. We work with partnerships, corporations, and LLCs.
Examples of What Constitutes Sexual Harassment
Sexual harassment has a much broader definition that most people initially realize. In fact, the passage of SB 292 in 2013 amended and expanded California’s former definition by providing that workplace conduct need not be motivated by sexual desire in order to be considered sexual harassment.
In order to avoid facing harassment allegations, employers must familiarize themselves with the type of conduct which is prohibited by law. Employers must also:
Include sexual harassment provisions in their employment handbooks, e.g. explanations of prohibited behavior. Sexual harassment policies are mandatory.
Put up anti-harassment posters supplied by the Department of Fair Employment and Housing.
Consider promoting a sexual harassment prevention program at the workplace, which may help to limit liability in certain situations.
Note that if an employer has 50 or more employees, he or she is further required to “provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position.”
Some common examples of sexual harassment include, but are not limited to, the following:
Any unwanted physical contact. This includes, but is not limited to, pushing, touching, slapping, or pinching employees. It also includes blocking doorways or otherwise preventing employees from moving freely without having to make physical contact.
Visual acts, such as making inappropriate hand gestures, showing a co-worker sexual materials, or staring at an employee’s body.
Verbal expressions, including jokes, threats, slurs, unwanted advances, and other crude or sexual language.
Offering an employee a raise, promotion, etc. in exchange for sexual favors. Conversely, threatening to demote or terminate an employee who withholds sexual favors is also sexual harassment.
Are California Employers Liable for Sexual Harassment in the Workplace?
While sexual harassment may be the act of an individual employee, employers can nonetheless assume liability. This can apply even in cases where the employer was unaware that harassment was occurring or did occur. However, employers may not be liable in cases where all of the following statements apply:
The alleged harasser was not a management-level employee.
This applies regardless of the plaintiff’s position at the company.
The employer was unaware that any harassment was occurring or did occur.
The employer must “take immediate and appropriate corrective action to stop the harassment” as soon as he or she becomes aware that harassment is a problem.
If an employer is aware that an unsafe work environment exists, yet fails to take reasonable measures to correct the problem as provided by Government Code § 12940(k), that employer could potentially be targeted by a lawsuit alleging negligent hiring or negligent retention.
The company had an active program to prevent sexual harassment from occurring.
Employers must be made aware that harassment claims need not involve financial damages to the plaintiff in order to be successful. As stated by the California Department of Fair Employment and Housing, “A victim may be entitled to monetary damages even though no employment opportunity has been denied and there is no actual loss of pay or benefits.”
Harassment is expressly prohibited by both state and federal law: Title VII of the Civil Right Act of 1964 and the California Fair Employment and Housing Act (FEHA), respectively. Title VII generally applies to employers with at least 15 employees, whereas FEHA applies to employers with at least five employees. Therefore, a company which escapes Title VII provisions may still be subject to FEHA, which furthermore applies to independent contractors. Employers are subject to maximum fines of $150,000 in cases where the Fair Employment and Housing Commission determines that harassment occurred.
What About Liability for Non-Employees?
Sexual harassment laws also extend to non-employees. For example, an employer could potentially be held liable if one of his or her clients or customers harasses an employee. In order for the employer to escape liability in this type of situation, two conditions would have to be in place:
The employer would have to immediately intervene as soon as he or she learned that harassment was occurring or had occurred.
The harasser must not have been in a position of authority over the victim.
Note that employers can also be held liable for harassment to jobapplicants and interviewees who are not actually employees of the company.
Finally, it is worth addressing the common misconception that only men are guilty of sexual harassment, and that only women are victimized. From a legal standpoint, gender has no bearing on harassment claims – only the conduct which occurred. Persons of either gender can be victims or harassers.
If a former employee has filed a sexual harassment claim against your business, you need an aggressive and experienced legal team to defend your company in court. To set up a confidential legal consultation, call the business law attorneys of Bellatrix PC at (800) 449-8992.
It shouldn’t surprise you that an employment lawyer will advise you to have an employee handbook.
But it may surprise you is that I would rather you have no handbook than one you write yourself.
Why would I say that?
Well, a handbook is an important legal document in lawsuits and labor audits. If you have non-compliant policies, it can create presumed liability automatically. In other words, non-compliant policies are like an admission of guilt.
In some cases, no written policies (for example, with respect to certain breaks, required notices, and pay policies) can also create a presumption of guilt. But non-compliant policies are a greater danger.
By far, my recommendation is that you have a lawyer-drafted, compliant employee handbook. Here is a short video on four good reasons why:
So now you know why you should have an employee handbook. Is downloading one off of an internet resource good enough?
NO! Employment laws are complex and numerous. Boilerplate employee handbooks often have provisions that sound reasonable to you as the employer, but are in fact illegal in some jurisdictions or may mislead you into doing something illegal.
I write several handbooks a year. I have never found a good template off a website (and I have tried several). I ended up creating my own template and checklist for management decisions. (You can choose different policies depending on how you want to run your business, and I advise on the financial, business and legal implications of those decisions as part of the drafting process.)
An employee handbook is a 50 page legal document that you should not attempt to DIY. Call a pro. And keep it updated!
Does it matter if I have an employee handbook?
“Does it matter if I have an employee handbook?” Yes! Here are four good reasons why. 1. A handbook teaches your managers and your employees the proper and legal way to do things. It’s not always commonsense. 2. A handbook empowers you to politely tell an employee “No” to a special request because it is against policy. This keeps everything fair. 3. A handbook can be used to defend you, should an employee lie about a situation to a court or governmental agency. 4. Employers are required to provide certain notices in writing to their employees, and a handbook is a good way to do it. Failure to provide these notices can result in lawsuits, fines and even criminal penalties. So yes, a handbook is essential and it should be reviewed by an employment lawyer annually. Does your business need employment law help? Visit us at bellatrixlaw.com to apply for our Employer Protection services.
Federal law and most states have various laws that prohibit sex discrimination, including, in many cases, sexual orientation discrimination. Additionally, California law strictly prohibits workplace discrimination based on an employee’s gender identity, biological sex, or sexual orientation. Businesses which violate these laws risk exposing themselves not only to the formal consequences of costly employee lawsuits and civil penalties, but also to the informal consequence of lasting bad publicity as a company which espouses prejudicial beliefs and practices.
If a former employee is alleging discrimination on the basis of orientation, sex, or gender, and has filed a lawsuit against your company, it is critical that you approach the matter tactically with support from an experienced employment law attorney. At Bellatrix PC, our knowledgeable legal team has extensive experience defending businesses, and will work with you to prepare a robust defense strategy against claims of employer misconduct.
Don’t allow the problem to escalate by delaying. To set up a confidential legal consultation, call Bellatrix PC at (800) 449-8992 today.
CA Anti-Discrimination Laws: Sex, Gender, and Orientation
People frequently refer to sex discrimination and gender discrimination as if they were interchangeable. In reality, there are key distinctions between these terms which are crucially important for employers to understand.
Sex discrimination refers to acts based on an employee’s biological classification as male or female. By comparison, gender discrimination refers to acts based on an employee’s personal characteristics, such as their manner of speech or way of dressing, as they relate to cultural “gender norms.” Gender discrimination is sometimes referred to as sexual orientation discrimination, and encompasses discriminatory acts based on an employee’s sexual preference.
California is one of 12 states, along with the District of Columbia, which protects employees against discriminatory acts based on sex, gender, and romantic preference. The law specifically protects individuals who identify as heterosexual, homosexual, gay, lesbian, bisexual, transsexual or transgender against discriminatory conduct.
Under California law, all of the following examples would be strictly prohibited by law:
An employer refuses to interview or hire a potential employee because he or she is openly gay.
An employer passes over a homosexual male employee for a promotion, even though he is just as qualified for the promotion as another heterosexual employee, solely because he identifies as homosexual. In this situation, the employees’ orientations are the deciding factor in the promotion, instead of their professional qualifications.
A male sales manager throws a dinner party at his house for other coworkers, including their spouses. He invites everyone on his sales team, except for a female coworker, because she has a same-sex partner.
A male employee is laid off due to wearing female clothing to work, even though he identifies as a woman.
Contact Our Business Defense Attorneys
As anti-discrimination legislation continues to broaden in scope, California-based companies can never be too careful or meticulous when it comes to handling lawsuits. The attorneys of Bellatrix PC will guide you through possible defense scenarios, and present different avenues in which to proceed with the claim. We will work with you to determine whether your organization could benefit more from pursuing a settlement, arbitration, mediation, or if need be, aggressive litigation.
Our experienced employment law lawyers will tenaciously defend you and your organization against employment discrimination claims in both state and federal courts. We want your business to succeed in the long-term, not just today, and will provide you with forward-thinking preventive advice that can help you avoid further claims heading into the future. Regardless of whether your company is large or small, new or well-established, you will benefit from our business risk review service.
Even if you have not been sued, and simply wish to discuss your organization’s current or proposed policies, we encourage you to contact us. Remember, reviewing your procedures today can prevent an expensive lawsuit tomorrow.
To start discussing your company’s situation in a private consultation, call Bellatrix PC right away at (800) 449-8992. Our offices are located in St. Louis, San Diego, and Riverside, CA.
Many people confuse gender and sex discrimination, as the terms “sex” and “gender” are often interchangeable. By definition, sex discrimination is based on an individual’s biological identity as male or female. By comparison, gender discrimination is based on individual characteristics which are culturally associated with “masculinity” or “femininity,” such as an employee’s manner of dressing or speaking.
Employers must be extremely careful with regard to employment contracts or policies which could potentially infringe upon protected legal rights. It is difficult to be “too” vigilant or meticulous when it comes to drafting and implementing gender-neutral company procedures. Failure to do so can lead to allegations of workplace discrimination, which in turn can lead to highly contentious, disruptive, and expensive litigation.
Whether an employee has already filed a lawsuit against your organization, or you are simply concerned about ensuring compliance with state and federal anti-discrimination laws, the experienced employment law attorneys of Bellatrix PC can help. Our legal services range from performing a comprehensive business risk review to identify and improve vulnerable areas in your company’s current policies, to providing strategic and aggressive defense should litigation become necessary.
Don’t wait for the problem to escalate. To start discussing some of your legal options in a private consultation, call our business attorneys right away at (800) 449-8992. We proudly serve entities of all types, ranging from the small start-up or sole proprietorship to the well-established corporation.
Examples of Sex Discrimination in the Workplace
California state laws and federal laws alike vigorously protect employees against acts of workplace discrimination on the basis of sex. These laws require equal treatment, policies, standards and practices for males and females in all phases of the employment process. Employers should note this also extends to non-employee individuals who are submitting job applications. Laws prohibiting employer misconduct are aggressively enforced by the Equal Employment Opportunity Commission or EEOC, and generally encompass discriminatory policies and practices pertaining to:
Below are some common examples of discriminatory conduct based on an employee’s sex:
An employee sexually harasses another employee, such as making suggestive comments or requesting sexual favors. While many sexual harassment claims involve female employees alleging harassment by male bosses or co-workers, it’s important to remember that harassment of males by females, males by other males, or females by other females are all prohibited by law.
An employer passes over an employee for a promotion because he or she does not conform with typical “gender norms” related to dress, appearance, or other personal characteristics.
A business owner approves a reduction in workforce [link when published] which disproportionately terminates mostly male or female employees on the basis of sex rather than poor performance or other legitimate concerns.
An employer terminates an employee after discovering that he or she is homosexual or bisexual.
Does Your Business Comply with the Equal Pay Act?
Two of the most common forms of sex-based discrimination involve “equal work for equal pay,” and hitting the “glass ceiling.”
The Equal Pay Act or EPA of 1963, which is part of the Fair Labor Standards Act, generally requires employers to grant equal pay to male and female employees who are performing the same job under similar working conditions. However, it is crucially important for business owners to understand that “equal pay” is not limited to an employee’s salary alone, but also includes health benefits, overtime pay, bonuses, stock options, business travel expense allowances, and other reimbursements.
The EPA covers the majority of employers, subject to certain exceptions. In most cases, employers are required to keep detailed information on employee wages, hours worked, and conditions and employment practices. This ensures there are reliable records to examine should claims of discrimination arise in the future. Employers should consider such documentation to be one of their most powerful allies, as accurate records can often be used to disprove costly and damaging accusations.
The “glass ceiling” refers to the invisible barrier that prevents women, who are equally as qualified as their male counterparts, from being promoted due to their sex. Another version of this would be if an employer only hires males or only hires females for the company. These types of claims are generally filed in federal court as class actions against a particular company which the plaintiff alleges contains a “glass ceiling.” Discrimination claims based on sex can also be brought under the California Fair Employment and Housing Act, or FEHA, as well in state court.
Contact Our Employment Lawyers
Whether the sex discrimination claim against your company has merit or not, our experienced team can advise you regarding your legal options while investigating and developing your defense. We tailor our services to your company’s style and needs, while keeping your company’s legal budget and time constraints in mind.
To arrange for a private legal consultation, call Bellatrix PC at (800) 449-8992 today. Our Missouri offices are located in St. Louis, and our California offices are located in San Diego and Riverside.
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Alicia I. Dearn is the founder of Bellatrix PC, a woman-owned law firm with offices in Missouri and California. Bellatrix PC handles lawsuits and business transactions. We advise in business, employment, real estate, intellectual property, civil litigation, and election law.
The articles published by Bellatrix PC are for informational purposes only and do not constitute legal advice. If you have a legal issue, please get competent advice from a licensed attorney in your jurisdiction. Use of Bellatrix PC's site is subject to our Attorney Advertising Disclaimers.