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SAN FRANCISCO EMPLOYMENT LAW BLOG

Sexual harassment has served as a constant problem in workplaces across the country for as long as workplaces have existed. However, the way sexual harassment takes place often changes with generations and time.

What does sexual harassment look at a modern workplace? How can workers identify it if it happened to them?

PHYSICAL VS. NON-PHYSICAL HARASSMENT

The U.S. Equal Employment Opportunity Commission discusses sexual harassment in the workplace. Of course, many cases of sexual harassment that see a lot of news and media coverage involve sexual assault or even rape. These physical cases garner a lot of attention, but actually make up a smaller percentage of overall sexual harassment cases than one may expect.

A large portion of these cases involves non-physical sexual harassment. What is this, though? In short, any form of coercion or threat to get one person to perform a sexual act counts as sexual harassment, even if the act never takes place. In short, nothing physical needs to happen for a person to file a report on sexual harassment.

TOXIC WORK ENVIRONMENTS

Another example involves creating a toxic work environment through gossip and rumors. Specifically creating rumors that center around or target a person’s sexuality, gender or sex life can count as sexual harassment, especially if it creates an environment that disallows a person from working normally.

Finally, even derogatory comments based on gender can count as sexual harassment. This goes for both genders and can include classic sexist remarks that also contribute to toxic environments.

If a worker experiences any of these situations, they should consider what steps they can take next to combat it.

Breastfeeding provides many important benefits for both babies and their mothers.⁠ Both UNICEF and the World Health Organization recommend that mothers breastfeed their babies.⁠

California has important laws in place to protect and support mothers who wish to pump breastmilk for their babies during their working hours.

WHAT ARE LACTATION BREAKS?

The law requires employers in California to provide lactation breaks, periods of time during the work day for nursing mothers to pump breastmilk. Employers must provide a private area where you can pump. It must shield you from view and be relatively free from intrusion; the private area cannot be a toilet stall.

HOW LONG WILL YOUR BREAK BE?

Your employer must allow a reasonable amount of time to pump, but this vague standard does not have a strict time limit. An appropriate break will depend on a number of factors, including:

  • The number and frequency of breaks you need
  • Time to walk back and forth to the space, wait if necessary, pump and refrigerate the expressed milk
  • Time to retrieve your pump, set it up, and clean and store it when you finish
  • Time for you to wash up and return to work

WHAT IF YOUR EMPLOYER DOESN’T WANT YOU TO TAKE A LACTATION BREAK?

If you wish to pump breastmilk when you return to work, you should let your employer know in writing. Employers cannot legally retaliate against you by punishing, firing, or treating you unfairly for exercising your legal right.

California supports breastfeeding mothers who wish to return to work by providing legally required lactation breaks. Taking advantage of this opportunity can help you take care of your baby while you successfully transition back to work.

Employment laws govern all the members of a business, including the boss or supervisor. While employees must follow certain rules in the workplace, employer actions cannot violate local or federal laws, or the employer may get into legal trouble.

It is ultimately up to your employer to ensure they are compliant with the relevant laws. However, you should also be aware of these laws in case your supervisor violates them. Here are a few key points to remember.

EMPLOYERS CANNOT PROHIBIT YOU FROM DISCUSSING SALARY

Employers can discourage workers from discussing salaries, but they cannot take steps to stop you from having these conversations according to the National Labor Relations Act. You and your co-workers are free to discuss salary at work, when meeting socially, or online. Salary comparisons are often an issue of work equality, so they must take place to ensure the staff receives fair treatment.

THEY CANNOT ASK YOU TO WORK “OFF THE CLOCK”

If the Fair Labor Standards Act covers you as a worker, your employer cannot ask you to work unpaid hours. You must receive compensation for all work you perform based on your current rate of pay. You are free to refuse unpaid work, and the employer cannot fire you for refusing. Retaliation is also against federal laws and considered a violation of your rights.

THEY CANNOT CHANGE YOUR WORKER CLASSIFICATION

Employers typically save money when hiring independent contractors. Workplaces do not have to provide contractors benefits, nor do they have to pay taxes on their behalf. However, there are some key differences between employees and contractors, and employers cannot classify a worker as a contractor just to save money.

For instance, an employee will work according to their employer’s schedule, while a contractor will work at their own pace. An employee receives their pay on a weekly or monthly schedule, while a contractor is usually paid per assignment.

Women who show up to work each day in California and other parts of the United States face a high chance of experiencing gender-based discrimination. About 42% of working women report having experienced it in some form or another. Female employees are also about twice as likely as male employees to report experiencing some form of gender-based discrimination on the job.

Per the Pew Research Center, a survey involving almost 5,000 adults offers insight into how often women face gender bias in the workplace compared to their male colleagues.

What the survey revealed

Almost a quarter of all women who participated in the survey reported that they had colleagues or supervisors treat them as if they were less competent than male colleagues who were performing the same job. About a quarter of all women surveyed also said they received less money than male colleagues despite performing the same job duties. Survey findings also revealed that female employees are three times more likely than male workers to experience on-the-job sexual harassment.

How education factors in

Survey results also showed that a woman’s level of education helps determine how likely she is to experience gender-based discrimination at work. The higher a woman’s level of education, the more likely she is to experience it. Almost 60% of female employees with advanced degrees reported facing gender-based discrimination on the job. Yet, only about 40% of working women with bachelor’s degrees said the same.

The survey responses also showed that women in the workplace face differing degrees of gender-based discrimination based on their race, ethnicity and political leanings.

As a female member of the American workforce, the chance of you experiencing gender discrimination at work at some point during your career is high. Both men and women across California and the rest of the United States may be victims of gender discrimination. However, it affects members of each sex differently.

Per SRHM, about four out of every 10 working women in America have experienced work-related gender discrimination.

Examples of gender discrimination

Women in the workplace experience many different instances of gender discrimination. Sometimes, it manifests as a woman receiving less money than a man while performing the same job and having the same skills. In other cases, female employees face different performance standards than men working in the same roles. Sometimes, gender discrimination manifests as team members excluding a woman from an important meeting or subjecting her to unwanted sexual advances.

Repercussions of gender discrimination

Studies show that gender discrimination at work decreases self-efficacy, or an individual’s confidence in his or her ability to successfully complete tasks, among working women.  However, it does not do the same for male employees. Many women with low self-efficacy also find themselves lacking motivation or disengaging from work-related tasks as a result. Gender discrimination also contributes to a toxic work environment. When this happens, it has the potential to hinder the success of an entire business or organization.

U.S. employees who work for companies that have at least 15 individuals on staff have certain protections available to them when it comes to gender discrimination. Title VII of the Civil Rights Act of 1964 outlines many of these provisions.

If you are pregnant and work in a highly competitive industry you may worry that your position will go to another employee while you take time off to care for your newborn.

Here is what you should know about employers’ obligations to women who take family leave after giving birth.

Do employers have to give employees coming back from family leave the same position?

Though many employers are legally obligated to give employees returning from maternity leave the same or a similar job, there are some exceptions. For example, if there is a legitimate business reason for letting an employee go, such as mass layoffs or corporate restructuring, your company may not have to grant you the position you previously held.

What do you do if you believe you experienced discrimination as a result of your pregnancy?

If you believe your employer discriminated against you because of pregnancy your first course of action to resolve the issue should include attempting to resolve the matter internally.  This could involve discussions with your manager or the human resources department if the company has one.

You have up to one year to file a complaint with California’s Department of Fair Employment and Housing. In instances when DFEH is unable to resolve the issue, the organization issues a right to sue letter and sends it to the employee giving them one year from that date to sue the employer.

Whether you can take legal action against your employer for pregnancy discrimination is not a black and white issue. Numerous factors come into play, but ensure you take action swiftly to avoid missing the deadlines.

There are no rules that govern the right time to tell your boss that you are pregnant. Obviously, you have to tell him or her eventually, but the timing is up to you.

Some women want to wait until they are through the first trimester before sharing the news, while others want to get it out in the open right away. If you are thinking about notifying your employer earlier, you should know the pros and cons.

Pros

According to CNN, informing your boss of your pregnancy early on allows you to start having the conversation about plans for your maternity leave and whatever other accommodations may be necessary. Having the plans in place well before the time comes can help give both you and your boss peace of mind.

Sharing news of your pregnancy early on can help build trust with your boss and your co-workers. While the timing of the disclosure is your decision, some may feel hurt that you did not come to them with the news sooner, as though you were hiding something. On the other hand, if you notify your boss and co-workers before you “have to,” they may appreciate your transparency.

Cons

If the worst should happen and you have a miscarriage, it can be a painful experience both physically and emotionally. If you do not feel that you can have that discussion with your boss, you may want to wait until after the first trimester to inform your boss of your pregnancy.

On the other hand, if your boss knows about your pregnancy, he or she may be more sympathetic if you tell him or her about your miscarriage in the event of that worst-case scenario. Ultimately, when you notify your boss depends on what you feel comfortable with.

As the age of technology continues to grow and stretch far beyond what most people may have previously imagined, it provides more solutions and convenient answers to problems in everyday life.

However, it also contributes to a rise in unique, technology-age issues at the same time. The digital hybrid workplace is one such area where this blending of benefits and drawbacks is the most visible.

Harassment in the digital age

The New York Times takes a deep dive into changing work environments in the digital age. Especially in the last couple of years, more workplaces have turned to fully digital environments. Even now as things begin to shift back to a previous status-quo, many of these places have maintained a hybrid digital environment for flexibility, convenience, cost-cutting and more.

However, harassment continues to pose a major issue even in these digital or hybrid environments. Many different factors contribute to these issues, such as private chatrooms.

The problems with chatrooms

A private chatroom feature on a work communication program allows many people to create a group that others who do not have an invitation cannot see. While this is theoretically good for certain purposes such as keeping the lid on secret projects, it can also create a potentially toxic and exclusionary environment.

Some individuals bullied in modern workplaces have stated that they feel isolated and distanced from others due to their exclusion from group chats. Some even end up bullied behind closed doors without even knowing about it, with coworkers and even employers talking about them and spreading rumors behind their backs.

This can escalate to the point that it creates a toxic work environment, at which point a worker may have the option of seeking compensation.

These days, more workers work from home than ever before. This has made space for significant changes in the modern workplace, with some positive and some negative.

Some of the most stubborn problems associated with physical workplaces have tracked into the virtual realm, though. Unfortunately, this includes issues related to discrimination and harassment.

Digital discrimination

The New York Times discusses virtual work environments and what that means for workers dealing with harassment. Unfortunately, putting a technological barrier between an aggressor and victim does very little to dissuade the aggressor. The modern workplace is still ripe with opportunities for people to victimize, bully and discriminate against others.

For example, it is easy to ignore a worker who can do little more than sending emails, text messages and other non-physical nudges. Discriminatory employers may use this tactic to avoid having to deal with an employee they discriminate against, and may even use it as an excuse to blame unfinished business on the victim.

The problem with private channels

Private chat channels have also received a lot of heat lately. These channels allow for workers to create private discussion groups that exclude certain members of the staff. This allows for negative talk and rumors to grow unchecked, which can create a hostile work environment for the target of the campaign.

Finally, many of the same issues workers faced in in-person facilities still exist in virtual ones. Employers can unfairly pass someone over for promotion due to discriminatory reasons, or may demote them or give them less desirable work even in a digital environment. This is why it is important for workers to understand their rights in the new digital age.

Many in the workforce look forward to the day they will one day retire. Retirement, however, should always occur under legal, non-discriminatory circumstances. Unfortunately, many employees feel urged or forced to retire when they hit a certain age despite their competency and willingness to remain in their position.

The Age Discrimination in Employment Act (ADEA) protects workers over 40 years from forced retirement, but there are many considerations that impact whether a retirement violates an employee’s rights.

Involuntary retirement

The ADEA prevents employers from age discrimination when hiring, firing, promoting and demoting their employees. A forced retirement often occurs when an employer has pressured or intimidated an employee into retirement through warnings of termination or a loss or reduction of benefits if he or she chooses to remain employed.

However, involuntary retirement is legal in several circumstances. Employees in executive positions, public safety sectors and policymaking roles face requirements to retire when they hit a certain age.

The ADEA cannot protect other employees in cases of potential involuntary retirement, such as when a company employs fewer than 20 people, if an employer fires an employee for another reason or if an employer pressures an employee to retire, and he or she does so voluntarily.

Voluntary retirement

Many circumstances permit employers to incentivize retirement for their employees. For example, an employer may offer an increased benefits package to encourage earlier retirement. The employer cannot, however, introduce unfavorable conditions for the employee if they do not accept the offer. These unfavorable conditions may include reduced hours, a decrease in salary, demotion or hostility or exclusion in the workplace.

Workers have a right to remain employed regardless of their age. The choice to retire must be legal, voluntary and made, or anticipated, by the retiree, and never by the employer alone.

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