Employment Discrimination
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In the absence of a contract or a collective bargaining agreement to the contrary, California law presumes employment is at-will by the employer. This means that an employee can be fired or suffer adverse employment action for any reason, or for no reason at all, except the employee cannot be terminated or subject to other adverse employment action based on a discriminatory reason or a reason against public policy. An example of a reason against public policy is when an employer fires an employee for whistle blowing to a governmental agency about legal violations in the workplace. In California, a discriminatory reason could be a reason based on a bias as to one’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation. Under federal law, a discriminatory reason is a bias based on an individual’s race, color, religion, sex, or national origin.
Accrued Sick Leave Pay is Available to Employees for Family Leave to Attend to the Illness of a Child, Parent, Spouse or Domestic Partner
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The California Supreme Court confirmed that Labor Code Section 233, commonly referred to as the “kin care” statute is designed to allow employees who have accrued sick leave to receive payment for time off to take care of the illness of a child, parent, spouse or domestic partner. Family leave is available to employees to take time off to care for a close relative, but family leave does not provide for payment for that time off. Labor Code Section 233 does provide for payment from an employee’s accrued sick leave entitlements. The case involved a collective bargaining agreement with an employer, Pacific Telesis Group, and was published by the California Supreme Court on February 18, 2010. The Supreme Court resolved whether Labor Code Section 233, which permits an employee to use accrued sick leave to take care of ill relatives, applies to paid sick leave policies that provide for an uncapped number of compensated days off. As an exception to the general rule, the California Supreme Court decided that employers who provide for an uncapped number of compensated days off for sick leave are not obligated to pay for “kin care”.
Hostile Work Environment Harassment
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Hostile work environment harassment requires, under the law, a link between the hostility by a coworker or supervisor that is based on a protected characteristic, such as gender, disability, race, or creed. Just because a boss is mean does not necessarily constitute a legal claim for hostile work environment. On the other hand, if the motivation of the boss is based on circumstantial evidence of sexual harassment or discrimination based on a disability or some other suspect classification, then an employee may have a claim for hostile work environment harassment.
The further requirements for hostile work environment sexual harassment are that the harassment is either “serious” and/or “pervasive”. “Serious” generally means that there was an unwanted and offensive touching or threat thereof. “Pervasive” means sexually harassing conduct that consists of more than a few isolated incidents, that is hostile or abusive to employees because of their sex, and frequent enough to alter the conditions of employment and create an abusive work environment. Note that a sexually objectionable environment must be both objectively and subjectively offensive. That means that not only must a particular plaintiff perceive the workplace as hostile or abusive, but also that a reasonable person, considering all the circumstances, would share the same perception of a hostile or abusive workplace.
Emotional Distress Claims Are Often Brought With Sexual Harassment Claims
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Victims of sexual harassment often add a claim for intentional infliction of emotional distress to their complaints. To support a claim for intentional infliction of emotional distress, a plaintiff must prove that the defendant’s conduct was so outrageous that it exceeded all bounds that are usually tolerated in a civilized community. Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable person in a civilized society should be expected to endure it. These high standards for proving severe emotional distress were recently reiterated by the California Court of Appeals in a case out of Orange County called Haberman v. Cengage Learning (2009) 180 Cal.App. 4th 365, which in turn relied on a 2009 case from the California Supreme Court, Hughes v. Pair (2009) 46 Cal. 4th 1035.
Anyone who makes or supports a claim of sexual harassment, or is a witness for a claim of sexual harassment, may not be retaliated against in accordance with the California Department of Fair Employment and Housing Act and the Federal Law, Title VII. These are anti-discrimination laws that include protection for individuals who make, claim, or become witnesses for sexual harassment in the workplace.
The interesting thing about a retaliation claim is that the underlying sexual harassment claim does not need to have merit. Retaliation can arise merely because someone made a claim or supported a claim of sexual harassment, even if the claim did not legally constitute sexual harassment in the workplace under the strict rules of what constitutes sexual harassment. Thus, an employer can be responsible for retaliation, even if the underlying claim does not constitute sexual harassment.
The retaliation laws are to protect employees, even when the claim of sexual harassment is not legally sufficient.
Unfulfilled Threats May Negate “Carrot” Quid Pro Quo Sexual Harassment
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You are probably familiar with the old analogy of someone using a carrot or a stick to induce another to do something. In the context of quid pro quo (this for that) sexual harassment, a harasser could use a “carrot” or a “stick” to threaten a victim. For example, if a harasser uses a “carrot”, the harasser might say or imply to the victim that in exchange for a sexual favor, the victim would get a raise or promotion. If, on the other hand, the harasser uses a “stick”, the harasser might threaten the victim that if sexual favors were not provided, the victim would be fired or skipped over for promotion.
In a recent case, the California Supreme Court seems to have treated sexual harassment as though harassers only use the “stick” as opposed to the “carrot” approach. In a case where the harasser essentially asked for sex in exchange for a benefit to the victim, the Supreme Court said there was no quid pro quo harm because the harasser did not follow through with the threat. This analysis would apply if the harasser used the “stick” approach, but in the case decided by the Supreme Court, the harasser had used the “carrot” approach. It is implicit in the “carrot” approach that there are no apparent consequences other than that the victim does not get the carrot in the absence of providing the sexual favor.
Quid pro quo sexual harassment should rightfully include sexual harassment with the “carrot” approach as well as sexual harassment through the “stick” approach. Even though the harasser does not punish the victim in the “carrot” approach, a victim who is propositioned for sex at work in exchange for a benefit and refuses to provide sexual favors is precluded from the offered benefit. The Court’s failure to recognize the “carrot” approach may leave the victim without legal remedy. Oddly, an unwilling victim who submits to providing sexual favors would be a legal victim of sexual harassment whether or not that victim received the promised benefits from the harasser.
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Obama Stands Up For Women’s Rights and Signs Lilly Ledbetter Fair Pay Act, Plaintiffs to Benefit
Act Extends Time Employee Has to File Claim of Wage Discrimination
Last week, President Obama signed his first major bill into law, the Lilly Ledbetter Fair Pay Act of 2009. The new bill changes the Civil Rights Act to allow employees to sue up until 180 days after receiving any discriminatory paycheck, and allows for backpay for up to two years preceding the filing of the charge. The act overturns the United States Supreme Court case of Ledbetter v. Good year Tire & Rubber Co., 550 U.S. 618 (2007), which held that the Plaintiff was not entitled to her award because she had filed her claim more than 180 days after receiving her first discriminatory paycheck.
Bill Expands Retaliation Claims for Sex Discrimination
Title II of the bill, the Paycheck Fairness Act, adds extra protection for women being retaliated against, by expressly prohibiting retaliation for inquiring about, discussing, or disclosing the wages of employees in response to a complaint or in furtherance of a sex discrimination investigation, proceeding, hearing or action, including an investigation conducted by an employer.
The signing of this bill came only three days after United States Supreme Court’s decision in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. 06-1595, which held that the antiretaliation provisions included in the Federal Title VII protect an employee who answers questions during an employer’s investigation into the sexual harassment complaints of another employee.