The Ottinger Firm, PC » Blog

Preventing Sexual Harassment: The Responsibilities of California Employers

Whether you’re a man or a woman, being the victim of sexual harassment in the workplace can be a harrowing experience. According to the American Association of University Women, when workers are sexually harassed on the job, it can have negative effects on their psychological and economic health, as well as make them a target for ridicule from other people in the workplace.

But it doesn’t have to go that far: Under the California Fair Employment and Housing Act, employers have a responsibility to take steps to prevent sexual harassment in their workplaces—and to act on it when it does occur.

California Employers Must Educate Workers About Sexual Harassment

One of the legal responsibilities that California organizations have to their employees is to prevent sexual harassment in the workplace. The law requires employers to educate their workers by distributing literature from the California Department of Fair Employment and Housing (DFEH). The agency has a poster that outlines what sexual harassment is and what employees can do if they are harassed on the job. In addition, employers can distribute brochures supplied by the DFEH to their workers, or create literature of their own. If they choose the latter, they must ensure that their in-house literature includes the following information:

  • The state and federal definitions of sexual harassment
  • A description of what sexual harassment looks like in the workplace, including concrete examples
  • How workers can file an internal complaint, as well as a complaint with the DFEH, and how the complaint process works
  • Legal remedies available to workers who have been sexually harassed
  • The definition of workplace retaliation and how workers are protected from retaliatory behaviors after filing a sexual harassment complaint

In addition to literature, organizations with over 50 employees must provide sexual harassment training to their supervisors. These training classes must be about two hours long and must be held every two years. In addition, new supervisors must be given this training within six months of being hired.

 California Employers Must Implement Sexual Harassment Policies

The Fair Employment and Housing Act requires organizations in California to create sexual harassment policies that adhere to state law. There should be a procedure in place for employees to file internal sexual harassment complaints, as well as a process to investigate those claims. Sexual harassment investigations must be thorough and objective, and should be conducted in a timely manner. If the investigation reveals that sexual harassment did indeed occur, employers are required to take prompt action against the harasser, as well as take steps to prevent future occurrences. In addition, if the employee filing a complaint has suffered a loss, the employer is required to take immediate action to remedy it.

Have You Been the Victim of Sexual Harassment?

Although the law is clear about the obligations your employer has to prevent and handle sexual harassment, some cases do fall through the cracks. If you have been the victim of sexual harassment and could not get your employer to take action, you have the right to file a complaint with the California Department of Fair Employment and Housing within one year of the incident. The agency will investigate your claim and determine the appropriate remedies—whether it be reinstatement to a job, reimbursement for lost wages, or compensation for emotional distress. In addition, an organization may be required to create or update its sexual harassment policies in order to meet California standards.

Sources:

http://www.aauw.org/what-we-do/legal-resources/know-your-rights-at-work/workplace-sexual-harassment/

http://www.dfeh.ca.gov/Publications_FEHADescr.htm

http://www.dfeh.ca.gov/Publications_StatLaws_SexHarrass.htm

New York City Company Under Fire for Alleged Disability Discrimination

All workers in New York City have the right to be treated with dignity and respect in the workplace, but one recently-filed lawsuit illustrates how destructive it can be when employees with disabilities are singled out for discrimination on the job.

Five employees at Barclays Center recently filed a lawsuit claiming that workers with disabilities were subjected to harassment. According to the suit, an employee who is blind in one eye was called names like “Cyclops” and “one-eyed guy” by company managers. Another employee, who suffers from cerebral palsy, as well as rhinophyma, a rare disorder that causes abnormalities in the size of someone’s nose, claims that his manager joked about “placing a piece of bread on his nose”. In addition, the employee was mocked because his medical condition makes his hand shake uncontrollably.

The lawsuit also claims that workers with disabilities were relocated so they wouldn’t be seen by the organization’s customers.

According to a company spokesperson, these allegations are not par for the course, and they take the employees’ claims seriously.

“We have a zero tolerance policy for any type of discriminatory behavior in the workplace. It is against everything that Barclays Center stands for,” Barry Baum told the New York Daily News.

Legal Protections for New York City Employees With Disabilities

Under the New York City Human Rights Law, workers with disabilities have the right to work in an environment free from harassment. The law prohibits employers from treating workers differently because of their medical conditions, as well as using their disability as a factor when considering employees for jobs at the organization. In addition, during the hiring process, employers are barred from asking candidates about the nature and extent of their disability—unless their medical condition is directly related to the job—or asking recruits to undergo a medical examination before they have been offered a position.

The law also gives employees with disabilities the right to receive reasonable accommodations that will help them perform the duties of their job. For example, employees may need to have modifications made on their cubicle or conference room to make them more accessible, equipment that helps them with their job, or a flexible work schedule that allows them to get the medical treatments they need.

Employees who need accommodations should make a request to their employer and follow up after a reasonable amount of time has passed. If the modifications are not made after repeated requests, employees have the right to file a complaint with the Commission on Human Rights.

If You Have Been Discriminated Against

If you have been the victim of workplace discrimination because of a disability, or have not received the accommodations you need to do your job, you do not have to suffer in silence. You have the right to file a complaint with the Commission on Human Rights at 100 Gold Street, Suite 4600 in Manhattan outlining the nature of the offense. The agency will conduct an investigation into your claim and let you know if you’re eligible to receive any remedies. The employer may be required to make the modifications you requested, or if you lost a job because of a disability, you may be able to get reinstated and receive compensation for lost wages.

In addition, if the Commission finds that an organization did break the New York City Human Rights Law, it may be required to change its policies to become complaint, so that workers with disabilities are treated with the respect they deserve.

Sources:

http://www.nydailynews.com/new-york/barclay-center-hit-5m-discrimination-suit-article-1.1882801

http://www.nyc.gov/html/cchr/downloads/pdf/publications/BlueBook_2014_FinalENG.pdf

http://www.nyc.gov/html/cchr/html/coverage/employment.shtml

http://www.nyc.gov/html/cchr/html/complaint/filing-complaint.shtml

http://www.nyc.gov/html/cchr/downloads/pdf/publications/EqualAccess_2012FinalENG.pdf

http://www.nyc.gov/html/cchr/html/coverage/law-coverage.shtml

 

New York City Diner Featured in ‘Seinfeld’ Accused of Disability Discrimination

When Tom’s Restaurant in New York City was featured in episodes of ‘Seinfeld’ in the 1990s, there was usually some comedic event going on. But in real life, according to one wheelchair-bound New Yorker, the disability discrimination currently happening in the restaurant is no laughing matter.

According to a lawsuit filed by Carolyn Coleman, Tom’s Restaurant is discriminating against New Yorkers with disabilities because it only has steps at its entrance, which makes it inaccessible to those with mobility challenges. As a result, she is seeking $30,000 in damages and a court order that would force the diner to make the necessary accommodations for those with disabilities.

The manager of Tom’s Restaurant, Manuel Papas, recently told the New York Post that while the diner does not have specific accommodations for potential customers with disabilities, that doesn’t really preclude them from enjoying a meal there.

“We no have access for handicapped,” he said. “But we have tables outside, though, that they can use. It’s not a problem in the summertime.”

How the New York City Human Rights Law Protects Workers With Disabilities

The New York City Human Rights Law, which was passed by the Commission on Human Rights, helps New Yorkers with disabilities by mandating that businesses make reasonable accommodations for them. But it doesn’t just apply to those who want to eat at places like Tom’s Restaurant; under the law, organizations must also make reasonable accommodations for its employees.

Under the New York City Human Rights Law, employers must give employees with disabilities reasonable accommodations that will help them perform their job duties. Although this can be considered on a case-by-case basis, some workplace accommodations that are common include making modifications to a cubicle, lounge, or conference room; providing an interpreter; buying workplace equipment like a telephone headset or special computer software; and allowing workers to have flexible shift schedules to accommodate any medical treatments they may need.

Workers who need accommodations should let their employer know right away, in person and in writing, what they need and why it’s necessary to help them perform the duties of their job. The law states that employees should give organizations a reasonable amount of time to make these accommodations and if they fail to do so, employees have the right to ask again. If the accommodations are still neglected, workers with disabilities can file a complaint with the city.

Legal Hiring Protections for New Yorkers With Disabilities

New Yorkers with disabilities won’t get the chance to ask for reasonable accommodations if they can’t get their foot in the door of an organization first. In order to prevent hiring discrimination against workers with disabilities, the New York City Human Rights Law prohibits employers from considering candidates’ medical condition unless it directly impacts their ability to do a job. In addition, employers are barred from asking candidates to take a medical examination unless they have been given a job offer, and they can prove that the results are relevant to the position.

What Victims of Disability Discrimination Can Do

If you have been the victim of disability discrimination on the job, you have the right to file a complaint with the Commission on Human Rights at 100 Gold Street, Suite 4600 in Manhattan. You can also reach the Commission by phone at (212) 306-7450.

Sources:

http://www.nydailynews.com/new-york/seinfeld-restaurant-discriminates-disabled-lawsuit-article-1.1905369

http://nypost.com/2014/08/15/seinfeld-diner-sued-for-not-being-handicap-friendly/

http://www.nyc.gov/html/cchr/downloads/pdf/publications/BlueBook_2014_FinalENG.pdf

http://www.nyc.gov/html/cchr/html/coverage/employment.shtml

http://www.nyc.gov/html/cchr/html/complaint/filing-complaint.shtml

http://www.nyc.gov/html/cchr/downloads/pdf/publications/EqualAccess_2012FinalENG.pdf

http://www.nyc.gov/html/cchr/html/coverage/law-coverage.shtml

New York City Clothing Store Accused of Ignoring Sexual Harassment

A former employee of the clothing store Urban Outfitters is suing the company for sexual harassment and workplace retaliation by using the old adage, “the customer is always right,” as an excuse to ignore the inappropriate sexual conduct of its customers.

According to her suit, Tatiana Swiderski experienced the first red flag of what was to come during her tenure at Urban Outfitters when she was first hired, and a colleague told her that the only reason she landed the position was because she was “tall, pretty, thin, and white.” Then, a few months later, she was sexually harassed by a customer for the first time. The lawsuit claims that she, along with a female coworker, was followed around the store by a male customer who was using a video camera to film up her skirt.

Swiderski says that she was further humiliated when the store security guards made the customer erase the video, but did nothing to help her. When she asked them to call the police—or give her the customer’s name so she could call—she was met with ridicule. One guard went as far as to ask her, “What are you wearing under your skirt?”

According to Swiderski, two weeks later another male customer grabbed her topped lip, claiming he wanted to look at her teeth. He then proceeded to lick her cheek, and tried to pull her out of her dress. Again, the guards in the store did not call the police. And, to add insult to injury, she was singled out for pat downs as she left the store at the end of her shift. When she complained about the incidents of sexual harassment, Swiderski claims she was relegated to working in the store’s stock room and told to “stop being a stupid bitch.”

Sexual Harassment in the Retail Industry

Studies show that sexual harassment perpetrated by retail customers is far from uncommon. Many women in that industry report being sexually harassed on the job by customers—and their employers oftentimes turn a blind eye because they want to keep shoppers happy, even if it’s at the expense of an employee’s right to work in a safe environment.

In addition, recent lawsuits show that gender discrimination in retail is also common. Companies like Walmart, Starbucks, Sterling Jewelers, and Dooney & Bourke have faced charges ranging from sexual harassment to wage discrimination to workplace retaliation for their alleged treatment of female employees.

How New York City Law Protects Workers From Sexual Harassment

The New York City Human Rights Law was designed to protect all workers from sexual harassment in the workplace. Sexual harassment can take two forms: quid pro quo sexual harassment and hostile work environment sexual harassment. Quid pro quo sexual harassment occurs when an employee’s job, raise, or promotion is put on the line in exchange for sexual favors. On the other hand, hostile work environment sexual harassment occurs when a workplace is so rife with sexually charged speech and conduct that it’s impossible to feel comfortable on the job. In either case, workers have the right to report the conduct to their boss without fear of workplace retaliation, and if the employer does not correct the harassment, they can file a complaint with the Commission on Human Rights.

Sources:

http://thinkprogress.org/economy/2014/08/13/3470632/urban-outfitters-sexual-harassment/

http://www.nydailynews.com/new-york/woman-urban-outfitters-upskirter-free-article-1.1899826

http://www.nyc.gov/html/cchr/downloads/pdf/publications/SexHarassment_Brochure_EngFinal.pdf

Non-Compete Agreements are Bad for Business

As you may know, New York and most other states do not prohibit non-compete agreements. In fact, NY courts will enforce these agreements. In California, non-compete agreements have been prohibited since 1850 and many believe that this policy has contributed to the growth of California’s economy and especially so in the technology field.

A while back, the National Law Journal ran an article by Richard A. Booth that suggests that California’s law against non-compete agreements may actually be good for business – especially the technology business. Mr. Booth argues that without non-compete agreements, companies are forced to retain quality employees with equity or other inducements. He also argues that with out the shackles of non-compete agreements, good employees are free to leave less productive companies at will. He suggests that this freedom of movement creates a more efficient marketplace and allows the best employees to be drawn to the best companies.

In New York, by contrast, good employees get trapped with bad companies by non-compete agreements and this hinders growth as human resources get stuck in poorly run companies. The net effect of non-compete agreements is that employees lose the ability to move and the economy is handicapped. Companies can tie up human resources with non-compete agreements. In my opinion, New York should change its ways and stop letting companies hamper the market place with non-compete agreements.