SAN FRANCISCO EMPLOYMENT LAW BLOG

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.

These days, more and more businesses embrace the accessibility and benefits that online work environments provide. Through this evolution in workplaces, old problems died out and new problems formed. Some problems stayed the same, while others simply changed to adapt to a new environment.

Unfortunately, sexual harassment falls into the latter category. Though some may not think it, it continues as an ever-evolving issue workers face every day in jobs across the country.

Coercion and threats

The New York Times looks into the changing forms of harassment at work. Sexual harassment continues to occur even with miles of space between people, unfortunately. In some ways, it continues as it had before. For example, a form of sexual harassment includes the use of coercion or threat to gain sexual favors. The perpetrator may promise the worker higher wages, better positions or bonuses if they agree, or they may threaten to demote them or dock their pay.

Newer forms of sexual harassment

With technology, more forms of harassment occur and evolve every day, too. Some perpetrators will send lewd photos of themselves through email attachments or text messages. Some may try to “sext” coworkers, while others might link inappropriate content such as pornographic websites while on the clock on work computers. Some even go as far as to expose themselves in video chats.

The good news is, technology also provides a good way to zero in on these perpetrators and catch them with well-documented evidence. This allows victims to hold their harassers accountable for their actions and seek the potential compensation that they may get in court due to the hardships they faced at work.

Many types of workplace discrimination receive considerable attention from news outlets and other media; however, parental status bias is often either overlooked or goes unreported by those who are unsure of what it entails. The Centers for Disease Control and Prevention note that laws protecting parents became law in May of 2000, although even today, many parents may remain unaware of their rights in the workplace.

Employed parents may want to watch for a few signs of discrimination based on their status, no matter the field or industry they work in.

1. Divorce discrimination

Some divorced, single parents may find themselves the target of parental discrimination if their employers have a moral objection to this status. Despite an employer’s morals, however, denying a parent a promotion or pay raise simply because of their beliefs is not legal. Parents who suspect this type of discrimination may want to document any incidents or communication so they can take steps to protect themselves under the law.

2. Foster parent discrimination

Foster parents may not realize parental discrimination rights protect them and the children they care for. The law extends to children under the age of 18 and those over 18 who cannot care for themselves due to a developmental disability. Employers who penalize such parents who need to take their foster children to medical appointments and attend foster care meetings are not permitted to do so under federal law.

3. Subtle negative speech

Employers who have a bias against parents in the workplace may try to undermine them with subtle comments disguised as jokes or banter. The intensity of the speech may escalate over time.

Parental discrimination also extends to pregnant and nursing women. Anyone who feels affected by the offensive actions may report them.

Having a baby is unquestionably one of the most important times of your life. Staying home to take care of your new family member is essential. However, once your Family Medical Leave of Absence is up, you may choose to return to work.

Before going back to work, you might wonder what the environment will be like. Has your job changed? Will you still have the same responsibilities? Will you have the same rate of compensation? It is reassuring to know what to expect before returning to your job.

What is FMLA and who qualifies?

According to the U.S. Department of Labor, FMLA allows eligible employees to take up to 12 weeks off of work in 12 months to care for a new baby or handle other specific family situations. To qualify, you must have worked for the company for at least one year, worked at least 1,250 hours and worked for an employer that has at least 50 employees before you qualify for FMLA benefits.

What happens when returning to work?

Once you come back to work, your employer must either give you the same job you had before you left or an equivalent job. The following must also remain the same:

• The job must involve similar duties, skill, effort, authority and responsibility
• The job must offer identical pay, including overtime, bonuses and premium pay
• The just must offer equivalent benefits, such as health insurance, stock options, sick leave, life insurance and vacation
• The job must offer the same work schedule, shifts and approximate location

If you choose to take a different shift or wish to have a change of responsibilities, you can talk to your employer about changing positions. It is unlawful for any employer to deny you these benefits when taking approved medical leave.

When you walk into a job interview, whether for a new position or for a potential promotion, you may find yourself asked an unexpected question. These out-of-the-box questions may allow employers to learn more about how you solve problems, your approach to working with others on the job and your long-term career aspirations. However, some of these unexpected questions may cross a line.

What questions might be a form of discrimination?

Do you plan on having children?

While this may seem like an interviewer is attempting to build a personal connection, it can also be a sign that they will factor your intent to have children into their hiring choice. Even if you don’t plan to build your family now, employers that base a hiring choice on the idea that an employee may become pregnant in the future are acting on a form of pregnancy discrimination.

What religious holidays do you observe? Do you go to church?

While most employers want to know about your availability and schedule, asking directly about your religious practices could lead to unfair treatment. Employers may base their hiring decision on your religious beliefs rather than your actual availability.

Are you a U.S. citizen?

While employers will need documentation that an applicant is authorized to work in the country or about the languages they speak, they cannot focus specifically on an applicant’s citizenship. This can be a subtle indicator that the interviewer will make decisions in part about an applicant’s national origin.

If an interviewer asked these or other unfair questions in your job interview, you may want to speak to an attorney about your legal options.

Mental illnesses are illnesses just like any other. If you were suffering from a broken leg, your employer wouldn’t be allowed to discriminate against you or harass you because of this. The law stands exactly the same for a mental illness, whether that’s depression, anxiety or another condition.

Those suffering from a mental health issue may be more vulnerable to discrimination and harassment because their illness is not visible. If you believe that you are being discriminated against or harassed because of a mental health condition, it is important that you understand the law and that you take legal action if appropriate. The following is an overview of your legal rights as an employee suffering from a mental health condition.

You cannot be fired because you have a mental health condition

If you are suffering from depression or anxiety, it is likely that you are struggling in some aspects of your work, or that you need to attend doctor’s appointments and therapy. Regardless, it is illegal for your employer to fire you, reject you for a promotion or ask you to leave, unless they have objective evidence that you are unable to perform your job role.

You don’t have to declare your condition to anyone

You never have to tell your employer about your condition if you do not want to. Similarly, your employer cannot ask questions about your health, physical or otherwise, except for some situations. Your employer can ask medical questions in the event that you ask for a reasonable accommodation if they are asking everyone in the same job category the same questions when they start the company, when they are engaging in affirmative action for people with disabilities or when there is objective evidence that you cannot perform your job.

If you believe that your employer may have broken the law regarding the way that they have treated you in relation to your mental health condition, assert your legal rights and protect yourself.