SAN FRANCISCO EMPLOYMENT LAW BLOG

Many California residents work in competitive environments. There may only be a few positions available at a particular place of employment, or only employees in certain roles will obtain particular benefits. As a result, it can take a lot of hard work to be promoted to one of those positions. Unfortunately, the feeling of accomplishment that may come with a promotion may be short lived if workplace harassment takes place.

“Workplace mobbing” is a term used for group bullying that occurs at places of employment. Typically, several other employees may bully someone in an important position or who simply performs his or her job well in efforts to get that person to leave the job. While bullying itself is not necessarily an action that is specifically against the law, harassment is.

In many cases, bullying can easily escalate into harassing actions, and workplace mobbing is considered a form of social harassment. Often, individuals who are subjected to this type of harassment can suffer negative impacts like post-traumatic stress disorder and anxiety, and they may even leave their jobs due to the toxic environment the actions create. It is also not unusual for people of color, workers considered “different” and women to especially face this workplace behavior.

Many people may think of bullying as something that happens on playgrounds and school yards. However, anyone of any age could suffer negative effects from bullying actions. If California workers believe that they have been the victims of workplace harassment due to the extent of such actions, they may want to explore their legal options to seeking justice and recompense for damages.

You undoubtedly know that if you report workplace discrimination to your California company’s management and/or the Equal Employment Opportunity Commission, federal law forbids your employer to fire you or retaliate against you in any other discriminatory manner. Title VII of the Civil Rights Act of 1964 strictly prohibits such adverse employment actions.

While some adverse employment actions, such as termination, are easy to spot, other kinds of retaliatory discrimination are subtler and not always recognized for what they are. For instance, your employer likewise cannot retaliate against you by means of any of the following:

• Reduce or threaten to reduce your salary or wages
• Reassign your work duties to other employees
• Take away your supervisory responsibilities
• Examine your work excessively
• Threaten to report you or one of your family members to immigration authorities
• Criticize you in public, especially in the media

Objective standard

The U.S. Supreme Court considers “adverse employment action” an objective standard even though the act(s) that constitute it must be determined on a case-by-case basis. In other words, whether or not you have a valid adverse employment action claim depends on the circumstances surrounding what your employer did to you. In various cases throughout the decades, the Court has held that all of the following acts amounted to adverse employment actions in their respective situations:

• Relocating the employee to a less favorable job site
• Scheduling the employee’s hours or work abusively
• Putting the employee under surveillance while at work
• Sabotaging or undermining the employee’s work
• Assigning the employee more work than that assigned to other employees who held the same job description or were part of the same pay grade
• Holding team lunches and disinviting the employee, even though (s)he was a team member

Bottom line, an adverse employment action is any retaliatory act your employer commits for the purpose of dissuading you and your co-workers from reporting workplace discrimination in the future.

Home Depot is offering an employee in Albany, New York, his job back after the company recently fired him for speaking up to a customer who hurled racist insults at him.

Maurice Rucker, who is black, was working in the garden center when he asked a customer with a dog to leash his pet while in the store, the Albany Times Union reported on Thursday.

In response, the customer, who is white, reportedly cursed at Rucker and said, “You’re from the ghetto. What do you know?”

Rucker, 60, told the Times Union that the customer said he would not have a job if Donald Trump wasn’t the president and called former President Barack Obama a “Muslim who didn’t know what he was doing.”

Rucker, who has worked at Home Depot for a decade and was named cashier of the month in July, said he responded because he was not going to stand for racist treatment.

He asked the customer to leave and told him, “You’re lucky I’m at work, because if I wasn’t you wouldn’t be talking to me like this.”

Less than a week after the incident, Home Depot fired Rucker. His boss told him that he should have immediately called a manager and should not have approached the man, according to the Times Union.

“I’ve lived all over the country, and I’ve had no one talk to me the way this guy talked to me,” Rucker told WNYT.

A Home Depot spokesperson told WNYT that Rucker was fired for not following protocol.

“The problem here is that he had several opportunities to disengage and contact management to deal with the customer,” Home Depot said. “We’re appalled by this customer’s behavior, but we also must require associates to follow proper protocol to defuse a situation for the sake of their safety and the safety of other associates and customers.”

But the company backtracked on Friday, telling HuffPost that they had “taken another look at this situation, and we are offering Maurice his job back.”

Source, https://www.huffingtonpost.com/entry/man-fired-from-home-depot-after-speaking-up-to-racist-customer_us_5b5232a4e4b0b15aba8ea35e, June 20, 2018.

California has finalized a new rule expanding national origin discrimination protections under the state Fair Employment and Housing Act (FEHA). This new rule takes effect on July 1, 2018.

Under FEHA, employers with five or more employees are prohibited from discriminating on the basis of national origin, among other protected classifications.

The new rule revises the meaning of “national origin” to include an individual’s or ancestors’ actual or perceived (1) physical, cultural, or linguistic characteristics associated with a national origin group; (2) marriage to persons of a national origin group; (3) tribal affiliation; (4) membership in an organization identified with or seeking to promote the interests of a national origin group; (5) attendance in schools or religious institutions typically used by persons of a national origin group; and (6) name associated with a national origin group.

The regulations also create additional protections for discrimination based on national origin. Specifically, the rule prohibits creating language restrictions, such as an English-only rule, unless the restriction results from business necessity, is narrowly tailored, and employees are notified of the details of the restriction.

Similarly, employers cannot discriminate against an employee for an accent associated with a national origin group, or based on the employee’s English proficiency, unless English proficiency is justified by business necessity.

An employer may not inquire or attempt to discover an applicant’s or employee’s immigration status, unless necessary to comply with federal law. Harassment based on the individual’s immigration status is also prohibited.

Employers cannot place employees in certain geographical areas, facilities, or positions based on national origin, or impose height or weight requirements that may have a disparate impact on the basis of national origin. Finally, employers may not retaliate against any employee for opposing discrimination on the basis of national origin, including by filing a complaint.

Source: Littler, https:/www.littler.com/publication-press/publication/july-new-january-salary-history-data-security-breaches-new-state-and, June 12, 2018.

As a California worker, you undoubtedly have days when you wish you did not have to go to work. Possibly that is because your workplace is not always the pleasantest place to be. You may have to deal with people who incessantly tell off-color jokes, make negative comments about you or other co-workers, make discriminatory and/or offensive comments to you, or otherwise make your life miserable. This type of workplace harassment can rise to the level of a hostile work environment.

Sadly, many forms of workplace harassment still exist, despite the fact that Title VII of the 1964 Civil Rights Act prohibits them. As you know, this Act prohibits discrimination based on any of the following:

• Race or ethnicity
• Religion
• Gender
• Age
• Political views

The good news is that this same law affords you protections against a hostile work environment. The question is, do your particular workplace and the things to which you are subjected actually constitute a hostile work environment?

Indefinite definition

As you might suppose, there is no all-encompassing definition of hostile work environment. Instead, these cases are highly fact-dependent, and the situation that one court decides is hostile is not necessarily the same as the situation another court would. Nevertheless, courts tend to take the following factors into consideration:

• How severe the harassment was
• How long it took place
• Whether or not it negatively impacted the plaintiff with regard to his or her work performance and productivity

Verbal assault

One thing that courts have pretty well decided is that words alone seldom constitute a hostile work environment. Not only must you show that the words offended you, you also must show that they were objectively offensive, i.e., that any reasonable person would likewise find them offensive. In addition, under most circumstances the person who said the words must also have committed an offensive act.

The exception to this general rule is in the case of verbal assault. If you can show that the words your co-worker said were so egregious, vulgar, lewd and/or hurtful that they embarrassed and/or humiliated you, the judge or jury may well conclude that your co-worker committed a verbal assault against you.

Damages

Although proving a hostile work environment is difficult, if you win your lawsuit, you likely will receive damages sufficient to recoup any medical bills and lost wages you sustained, as well as your emotional distress. You may also receive punitive damages if the judge or jury determines that your employer knew or should have known about your harassment but failed to stop it.

Most Californians want to do their jobs to the best of their abilities. Though some days may seem more difficult than others, they can often power through and reach the end goal. However, when parties must contend with workplace harassment, their jobs may become immensely more difficult, and these actions may cause their work and personal lives to suffer.

Harassment can come in a variety of forms. When individuals are treated unfairly due to their race, religion, national origin or ethnicity, co-workers or employers could make comments or take discriminatory actions in regard to a person’s clothing, physical appearances or other traits that may represent cultural differences. Harassers in the workplace may mock individuals, verbally abuse them or constantly disrespect their cultures by attempting to make them go against their beliefs.

Harassment does not only extend to individuals with cultural differences. Individuals with disabilities can also face this type of harassing and discriminatory behavior. They may be called derogatory terms and face mockery for physical or mental differences. Harassers could even go so far as to steal needed equipment or medication in order to make a disabled person’s job — and life — more difficult.

When individuals face any type of workplace harassment, they may feel that their only options are to endure the mistreatment or leave their jobs. However, there are other routes that parties could take to address the problems. California workers who have been harassed on the job may wish to consider filing legal claims against their employers and/or other culpable parties in order to seek justice and restitution.

Source: dealermarketing.com, “Know the Different Types of Workplace Harassment, Part 2“, Kynzie Sims, May 3, 2018

When a place of employment becomes hostile, it can have a major impact on workers. If one person in particular bears the brunt of workplace harassment, he or she may dread or even fear going to work due to the mistreatment likely to come. When parties face this type of scenario, they may wonder how to deal with the harassment, discrimination and other unseemly acts.

California residents may be interested in one woman’s case dealing with such an issue. Reports stated that the woman had come to the United States from another country in order to work as a nurse. While working, the woman was subjected to unfair treatment and bullying from her co-workers due to accent, recently entering the country and post-traumatic stress disorder resulting from childhood trauma.

The woman claims that due to the harassment she faced, she filed a complaint with the hospital’s human resources department. However, rather than offering aid, the HR department did not take any action to stop the wrongful behavior and instead told the woman she should look for other employment. As a result, the woman has filed a lawsuit against the hospital for discrimination.

Landing a dream job can be one of the greatest moments in a person’s life, but when the idea of going to work is no longer pleasant, many individuals may wonder how this was ever their dream. Workplace harassment can have many damaging effects on a person, in addition to causing their work life to suffer. If California residents have faced discrimination, harassment or other factors contributing to a hostile work environment, they may wish to consider their legal options.

Source: krqe.com, “Former UNMH nurse sues hospital for work discrimination“, Jeannie Nguyen, Feb. 12, 2018

Facing unseemly behavior from other people day after day can take a considerable toll on individuals. When this behavior occurs at someone’s place of employment, he or she may dread going to work and face other negative effects. Workplace harassment can take negatively impact the lives of California workers, often affecting their health and well-being.

It was recently reported that a study conducted regarding the effects of workplace harassment showed that victims suffered in a multitude of ways. Individuals who were more likely to suffer from harassing actions in the workplace included those who were female, overweight, divorced or multiracial. Not only can being subjected to this type of harassment have mental impacts, it can also result in physical detriments as well.

The study took information from a 2010 health survey that included 17,500 participants. Eight percent of those individuals stated that they were harassed or bullied at work. The impacts that these victims faced included depression, sleep loss, symptoms of PTSD and stress. It was also noted that female workers showed more significant rates of experiencing certain negative effects, such as migraines and psychological distress.

When individuals must work in a hostile environment created by workplace harassment, they can easily begin to suffer these and other negative impacts. If California workers feel that they face such actions, they may wish to take steps to work toward ending the harassment. If employers, supervisors or other authority figures do not take the proper action to address the concerns, affected parties may wish to consider their legal options.

Source: safety.blr.com, “Study: Workplace harassment plagues U.S. employees“, Jan. 2, 2018

Being subjected to unfair treatment at the workplace can have a devastating impact on a person’s life. Although there are laws and regulations in place to protect individuals from workplace harassment, unfortunately, it continues to be a concern for individuals in California who work in a variety of professions. A recent report suggests that nearly 40 percent of individuals employed with the National Park Services have experienced some form of harassment or discrimination while on the job.

Harassment can come in many forms, but according to the report, the most common types that employees have experienced have either been sexual or gender-based. Upon being questioned about this area of concern, many admitted a lack of trust in the agency’s ability to handle such issues. This has apparently led up to 75 percent of those affected by harassment to choose not to file a complaint, many of which reportedly believed that it would not do any good.

Gender-based harassment may unfortunately be present in a multitude of professions. However, the report suggests that those who work within this particular field may be subjected to an increased level of stereotyping. Suffering such unfair and unjust treatment can be devastating, and it may lead some to search for work in a different field entirely, despite their wishes.

Those subjected to workplace harassment of any kind may wish to protect themselves from unnecessary suffering, but the process can be intimidating. When facing a similar circumstance, one could consult an experienced attorney for advice on available options for legal recourse. An attorney in California can address the situation and assist a client in pursuing the most favorable outcome possible through the necessary outlets.

Source: thinkprogress.org, “The National Park Service has a serious workplace harassment problem“, Rebekah Entralgo, Oct. 13, 2017