10 Sep '18
Less than a month before the movie “The Predator” was released, actress Olivia Munn learned that fellow actor Steven Wilder Striegel was a registered sex offender. She reported the information to the studio, and in response the studio pulled the scenes involving the actor. But, it turns out that The Predator’s director Shane Black was friends with Striegel and knew of his status as a registered sex offender before casting him in the movie. He never told Munn or anyone else involved in the production. And while the scene was cut, Munn has felt ostracism from her peers since she made her report.
This situation raises interesting questions about employers’ obligations to protect other employees and prevent sexual harassment. Below, I discuss some of the key laws that apply.
The Fair Employment and Housing Act Creates a Duty to Prevent Workplace Harassment
The California Fair Employment and Housing Act (FEHA), Government Code § 12940, prohibits workplace sexual harassment and other forms of harassment and discrimination based on protected categories. An employer is strictly liable for sexual harassment by a supervisor. It is also liable for harassment by coworkers, subordinates, and even nonemployees if it knew or should have known of the harassment and failed to take immediate and appropriate corrective action. An employer is also separately liable for failing to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
This means that an employer faces significant exposure under the FEHA if it knowingly employs a sexual harasser or sex offender and fails to take actions to protect its other employees from sexual harassment by that person.
Megan’s Law Establishes a Sex Offender Registry, But Limits the Use of Such Information in Employment To Protecting Persons at Risk
California’s Megan’s Law, Penal Code § 290.46, requires the California Department of Justice to maintain a website that identifies individuals convicted of specific sex offenses. The Megan’s Law Website includes the following information about the sex offenders listed in the registry: their name and known aliases, a photograph, a physical description, including gender and race, date of birth, criminal history, prior adjudication as a sexually violent predator, the address at which the person resides, and any other information that the Department of Justice deems relevant. Crimes that trigger a listing in the registry include: rape, sexual battery, sexual trafficking of minors, and sex crimes involving children. Certain sex offenders may apply to have their information removed from the website…
What is sexual harassment? A lawyer’s response.
Sexual harassment is rampant in many workplaces. Sometimes it can take extreme forms (for example, sexual assault), but other times it can be created through offensive and inappropriate comments that a supervisor or coworker considers to be “just joking.” Unwanted sexual conduct and comments can turn an otherwise perfect job into a nightmare.
There are two categories of sexual harassment:
- Quid pro quo sexual harassment, and
- Hostile work environment.
Quid Pro Quo Sexual Harassment
Quid pro quo sexual harassment occurs when a supervisor or person with authority conditions an employee’s job or job benefits on the acceptance of sexual advances or conduct, or when the supervisor makes employment decisions based on whether the employee accepted the sexual advances/conduct. A supervisor can engage in quid pro quo sexual harassment in a number of ways, including with sexual propositions, graphic discussions of sexual acts, and sexual comments on the employee’s body.
It does not need to be explicit. For example, if a supervisor insinuates that an employee will have to sleep with him to advance in the company, that is quid pro quo sexual harassment. Having to submit to sexual advances–or even having to laugh along to someone’s inappropriate sexual jokes–should never be a factor in whether someone succeeds at work. . . .
04 Dec '16
Given the election outcome, there is much uncertainty about the what the future holds for our country. Workers have many reasons to be concerned, particularly given that our President-elect will likely appoint and nominate people hostile to workers’ rights and civil rights to government positions, including to the Equal Employment Opportunity Commission, the National Labor Relations Board, and the Supreme Court.
Fortunately, we in California are to some extent shielded from changes in federal laws in situations where there are California laws in effect that offer similar or broader protections. To give some examples:
- A California employee can usually sue for discrimination, harassment, or retaliation based on sex, race, and certain other protected categories under either the California Fair Employment and Housing Act (“FEHA”) or under Title VII of the Civil Rights Act of 1964 (“Title VII”). The FEHA covers employers with five or more employees for discrimination and retaliation, and one or more employees for harassment, and also allows individual harassers to be sued personally. Title VII applies to employers with fifteen or more employees and does not allow for individual liability. Title VII also contains caps on compensatory and punitive damages based on the size of the employer, while the FEHA has no such limitations.
- The FEHA explicitly prohibits discrimination based on “gender, gender identity, gender expression” and “sexual orientation,” while Title VII does not. The EEOC and a number of federal courts have taken the (logical and just) position that sexual orientation discrimination is a subset of sex discrimination and therefore prohibited under Title VII (as is discrimination against LGBT individuals in general), but there is a risk that with a change in the composition of the federal courts, we could regress in interpretations of federal law. Regardless, LGBT workers in California will remain protected.
- The FEHA and the Americans with Disabilities Act (“ADA”) offer similar protections with respect to disability discrimination. The FEHA is more protective of disabled employees and explicitly states that the ADA serves only as a “floor.”
- The California Family Rights Act (“CFRA”) and the Family and Medical Leave Act (“FMLA”) are two leave laws that have significant overlap in their coverage and protections. Again, CFRA offers more protections to California employees, particularly pregnant women who also take pregnancy disability leave.
- California’s Labor Code contains a number of protections regarding minimum wages, overtime pay, recordkeeping, and other employee protections, as does the Fair Labor Standards Act (“FLSA”). The California laws tend to be more protective (for example, providing that most non-exempt employees receive overtime for for all hours over 8 worked in a day, not just for all hours over 40 per week, and also requiring that employees receive meal and rest breaks).
- California has a number of laws that protect whistleblowers, including Labor Code section 1102.5 (a broad statute that protects all types of whistleblowing), Labor Code section 6310 (protecting employees who complain about workplace health and safety issues), and Health and Safety Code section 1278.5 (protecting employees who complain about patient health and safety issues). There are some overlaps with federal whistleblower laws.
As the previous paragraph demonstrates, our laws tend to offers greater protections and additional remedies as compared to federal employment laws. For that reason, most California employees choose to sue under the California laws when possible. In addition, asserting California (and not federal) claims allows employees to file and usually to keep their cases in state courts. There, an employee need only convince nine out of twelve jurors to find in his favor in order to win his case, in contrast to the requirement in federal court that the jury find for him unanimously. Judges in state court are also less likely to grant summary judgment and dismiss employees’ cases, and tend to give lawyers more time to try their cases.
We are fortunate to live where we do. The newly enacted Labor Code section 925 will ensure that employers cannot strip California employees of their substantive rights or force them to litigate/arbitrate their claims in out-of-state forums. Even if the courts and the nominees/appointees of the new administration will interpret federal laws in a manner that is less favorable to employees, California workers can continue to pursue their state claims, and can continue to push for even more progress in California.
20 Feb '16
An estimated 0.3% of adults are transgender. Many face pervasive harassment, discrimination, violence, and abuse in every aspect of their lives, including at work, in housing, education, healthcare, and personal relationships. Consider the discrimination suffered by transgender individuals at work. According to a comprehensive 2011 report titled “Injustice At Every Turn: A Report of the National Transgender Discrimination Survey“:
- 90% of transgender individuals surveyed reported experiencing harassment, mistreatment or discrimination on the job or took actions like hiding who they are to avoid it.
- 47% said they had experienced an adverse job outcome, such as being fired, not hired or denied a promotion because of being transgender or gender non-conforming.
- Over one-quarter (26%) reported that they had lost a job due to being transgender or gender non-conforming and 50% were harassed.
- Large majorities attempted to avoid discrimination by hiding their gender or gender transition (71%) or delaying their gender transition (57%).
- Overall, 16% said they had been compelled to work in the underground economy for income (such as doing sex work or selling drugs).
- Respondents who had lost a job due to bias also experienced ruinous consequences such as four times the rate of homelessness, 70% more current drinking or misuse of drugs to cope with mistreatment, 85% more incarceration, more than double the rate working in the underground economy, and more than double the HIV infection rate, compared to those who did not lose a job due to bias.
- A staggering 41% of respondents reported attempting suicide compared to 1.6% of the general population, with rates rising for those who lost a job due to bias (55%), were harassed/bullied in school (51%), had low household income, or were the victim of physical assault (61%) or sexual assault (64%).
California has protected transgender employees from workplace and housing discrimination since before 2003. It has done so through the Fair Employment and Housing Act (FEHA), which prohibits discrimination, harassment, and retaliation based on certain protected categories. However, many Californians remain unaware that transgender employees are protected from workplace discrimination. To help educate workers and employers, the California Legislature made these protections explicit in 2003 and 2011. And, this week, California’s Department of Fair Employment and Housing issued guidance . . .
23 Sep '15
If you believe that you were not hired/promoted or were terminated/laid off because of your age, can you still have a case if the person given preference is also over 40?
The short answer is “yes.”
It does not matter that the person favored is also over 40 if he is “substantially younger.”
The Supreme Court in O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), confirmed that age discrimination can occur even if the person favored is also over 40. In O’Connor, a 56-year-old who was fired and replaced by a 40-year-old sued under the Age Discrimination in Employment Act of 1967 (“ADEA”). The district court granted the defendant’s summary judgment motion and the Court of Appeals affirmed, holding that the plaintiff failed to make out a prima facie case of age discrimination under because he failed to show that he was replaced by someone under the age of 40. The Supreme Court, in an opinion written by Justice Scalia, held that an employee asserting age discrimination need not demonstrate that his replacement was under 40; rather, he must demonstrate that his replacement was “substantially younger.” O’Connor, 517 U.S. at 312. The Court explained:
Whether you are terminated, laid off, or resign voluntarily from your job, your employer must provide you with your final wages in a timely manner. If your employer does not pay your final wages in full and on time, you can seek penalties in addition to the actual wages owed. You may also be able to recover attorney’s fees, costs, and interest if you prevail on an action for unpaid wages. California’s Labor Code lays out an employer’s obligations with respect to the payment of final wages as well as the penalties for failing to comply.
Payment Upon Termination
When an employer terminates or lays off an employee, it must “immediately” pay the employee all earned and unpaid wages. (Labor Code § 201.) The employee must be paid “at the place of discharge.” (Labor Code § 208.)
Payment Upon Resignation
If an employee quits without notice, the employer must provide final wages within 72 hours of the resignation. However, if the employee gives notice 72 hours or more in advance of the actual resignation, then the employee must be paid . . .
05 Nov '14
If you work in California and are not a union member, chances are that your employment is “at will.” This means that your employer can terminate your employment at any time, with or without notice, for almost any reason they see fit. The key word here is “almost.” Even if your status is “at will,” an employer cannot discriminate against or terminate you for reasons that the law specifically prohibits.
Is Your Employment “At Will?”
In California, the presumption is that your employment is “at will.” This is reflected in Cal. Labor Code Section 2922: “An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month.”
The default of “at will” status can be altered through a contractual agreement. Most frequently, this happens when unions negotiate collective bargaining agreements on behalf of their members. Collective bargaining agreements usually provide job protections, including by requiring progressive discipline and “just cause” to terminate an employee.
An individual employee can also enter into an employment contract for . . .
06 Mar '14
Did you ever wonder what’s in your personnel file? Do you know that you have a right to find out? What other documents are you entitled to see or copy? Below, I discuss the employment records you are entitled to get and share sample language for making such a request.
Labor Code § 1198.5 provides that (with limited exception): “Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records. . . .
You say it’s a “hostile work environment.” But is that workplace bully breaking the law? The answer may surprise you.
So your boss/supervisor is a jerk. He’s mean, abusive, and he talks down to you. He embarrasses you in front of others and he diminishes your work. You think he may be sabotaging you and intentionally setting you up to fail. Surely he’s breaking the law and you have a case, right?
Mizrahi Law, APC
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- Ms. Mizrahi was elected as an officer of the State Bar of California Labor & Employment Law Section.
- Ramit Mizrahi has been selected as one of the Top 100 Super Lawyers® Rising Stars and Top 50 Women Rising Stars in Southern California.
- Ms. Mizrahi has been selected as a Pasadena Magazine Top Attorney.
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