Racism Within a Police Department?

racism within police departmentRacism within a police department? You would expect the people in the business of law enforcement to actually know the law and follow it. But according to one officer of the San Jose Police Department, when it came to racist comments and discriminatory behavior, the department knew of harassment and did nothing to stop it.

Details of the Racism Claim

Officer Nabil Haidar escaped a civil war in Lebanon by coming to the United States in the late 80s. Roughly a decade later, he joined the SJPD. According to him, discriminatory nicknames have plagued him from the beginning, increasing in ruthlessness over time. The taunts included tags such as The Beirut Bomber, ISIS, and Taliban. Why did he not complain when things first started? He says he feared retaliation.  

Finally, in 2017, Haidar had enough when a sergeant “joked” in a meeting that Haidar had worked with ISIS for two years. Haidar quickly filed an administrative claim alleging harassment. After almost a year passed with no conclusion to the internal investigation, Haidar took things a step further and filed suit against the department. In addition to the initial discrimination and harassment, Haidar asserts that the department Chief has retaliated against him with an unfair reprimand for a collision in which Haidar was involved. According to Haidar, the chief left out pertinent information related to the crash, which would have exonerated him to an extent, in the reprimand.

In Haidar’s May 2018 claim, he says a transfer taken due to the problems has resulted in more than one million dollars in lost future wages over the coming years until he is eligible to retire.  He also is claiming $5 million for emotional distress.

Equal Employment Opportunity Commission Laws

Federal law prohibits discriminating against individuals due to race, culture, or ethnic background. This relates to any aspect of employment, including hiring, pay, benefits, training, promotions, job assignments, layoffs, and firing. Equally important, the law addresses harassment, stating that employees shall not be victimized with racial slurs or pejorative statements related to race or ethnicity. This applies to coworkers and supervisors alike. If such harassment exists and is the basis for creating a hostile work environment, it can result in legal consequences.

Racism – A Significant Problem

Although some might believe that racism is no longer a problem in America, the numbers tell a different story. Nationwide, nearly 35,000 suits filed with the EEOC were resolved in 2017 alone, at a cost of over $75 million.  Clearly, a substantial problem still permeates this country in all sorts of businesses. [Read more…]

Boeing Pays for Hostile Work Environment

hostile work environmentSix hostile work environment lawsuits at Boeing. Boeing considers itself to be a stellar employer, one that aspires to build values of respect and that is intolerant of harassment. A jury, however, found that the company fell short of that aspiration, and demonstrated just how serious the shortcomings were with a verdict awarding hundreds of thousands of dollars to a disparaged employee.

Details of the Boeing Hostile Work Environment Case

Roderick Marshall was a veteran employee at Boeing, having put in 18 years with the company. He tolerated jokes that were seething with racism without reporting them to supervisors. While management does not dispute this, they did not deal with the situation because, they say, Marshall failed to follow company protocol for reporting complaints.

Then one day, a white employee at Boeing twiddled with a string of rope, eyes on Marshall, Marshall could not have imagined what was to come next  The white man tossed the rope to Marshall, who caught it, only to see that it had been tied into a hangman’s noose. Offended, Marshall had had enough. A jury awarded Marshall $350,000 in damages. Their judgment listed several problems:

  • Boeing failed to prevent harassment;
  • Hiring practices were negligent;
  • Supervision of employees was lax;
  • Retention of problem employees was negligent.

This case highlights the responsibility of employers to police the work environment in order to ensure that employees are safe in all regards. Unfortunately for Boeing, their court days are not over. Five additional lawsuits are currently in the works, all related to discrimination and harassment.  

Defining a Hostile Work Environment

The U.S. Equal Employment Opportunity Commission (EEOC) cites particular requirements in defining a hostile work environment:

  • Demonstrations of discriminatory behavior directed toward a protected class (race, gender, age, sex, disability, or religion);
  • Repeated, not isolated events over time;
  • Actions severe enough that a reasonable person’s work would experience interference as a result of feelings of intimidation and/or abuse, or;
  • Actions that prevent an employee’s ability to advance;
  • A failure of management to respond to a known and/or reported situation, or;
  • An insufficient response to the problem.

Building a Healthy Workplace Environment

As an employee, there are a number of things you can do to help build an inclusive work environment. Some suggestions include:

  • Joining company activities and events designed to help employees network and grow relationships;
  • Participating in additional professional organizations;
  • Creating your own social groups with individuals from work, or who can help you with workplace issues.
Experiencing a Hostile Work Environment

In the event you are suffering from a hostile work environment, what should you do? Here are some tips:

  • Keep dated notes about specific issues;
  • File a complaint with human resources;
  • Consider getting counseling to deal with the emotional repercussions.

[Read more…]

Pregnancy or Career – Can You Have Both?

PregnancyAre you currently pregnant or considering pregnancy? Well the decision to start a family is complex and requires a number of considerations, but pressure from your employer should not be one of them. The law offers specific discriminatory protections for mothers or potential mothers in the workplace. An experienced employment lawyer can help you with issues in the event you feel you are experiencing pregnancy discrimination.

Federal Protections

The Pregnancy Discrimination Act (PDA) prohibits workplace discrimination related to pregnancy. That means that being pregnant cannot influence any decisions regarding hiring, pay, job assignments, training opportunities, layoffs or firing. Additionally, benefits relating to health insurance or leave cannot be determined based on this status.

Physical Limitations

If your pregnancy interferes with your ability to perform duties normally associated with your position, your employer must provide alternate assignments, disability leave, or other leave just as it would for any other temporarily disabled employee. If your pregnancy results in additional health issues, such as preeclampsia, for example, the law requires reasonable accommodations.  These types of medical conditions are covered disabilities under the Americans with Disabilities Ace Amendments Act of 2008.

Reasonable Modifications

Modifications must be based on individual circumstances and needs.  Some common accommodations that might be required include:

  • Eliminating non-essential functions (such as heavy lifting) from the workload for a period of time;
  • Allowing frequent restroom breaks;
  • Modifying daily schedules to accommodate morning sickness;
  • Allowing an employee to be seated when standing might normally be expected.

What is Harassment and Discrimination?

Clearly, harassment, intimidation, and any discrimination surrounding pregnancy or childbirth is unlawful. Any behavior that creates an offensive or hostile work environment due to its frequency or severity, or that results in an unfavorable job action, may be actionable. Refusing to provide reasonable accommodations could also be considered discrimination.

Pregnancy and Maternity Leave

If an employer allows disabled persons to take disability leave with or without pay, the same must be offered for pregnancy-related issues. Pregnancy cannot be singled out with special rules or procedures. In addition, the Family Medical Leave Act (FMLA) of 1993 allows any new parents up to 12 weeks of paid or unpaid leave for the care of a new child, given the employee has worked for a year prior to the requested leave.

Finally, the Fair Labor Standards Act (FLSA) provides that nursing mothers must be afforded the time and private location (not just a bathroom) to express milk. [Read more…]

Can Employer Confidentially Investigate Your Employee Harassment Claim

Employee HarassmentCan an employer confidentially investigate an employee harassment claim? City of Petaluma v. Superior Court. In 2008. Andrea Waters became the first female firefighter/paramedic to work for the city of Petaluma, California. In 2014, she went on leave. Later that year, she filed an employee harassment complaint against the city alleging that she had been subjected to harassment and gender discrimination, in violation of California’s Fair Employment and Housing Act (FEHA).

The city hired an attorney to investigate Waters’s employee harassment claims. The attorney signed an agreement stating that she would perform an impartial investigation. The agreement also stated that it established an attorney/client relationship between the attorney and the city.

At trial, the city asserted the “avoidable consequences” doctrine as a defense. The doctrine applies when an employee has failed to take necessary and reasonable steps to avoid the harm and/or consequences alleged in the employee’s harassment complaint. The city argued that Waters had never complained to her superiors about harassment or discrimination while she was employed.

During the discovery phase of the trial, Waters requested documents related to the attorney’s investigation. The city argued that the documents were subject to attorney-client privilege and the work product doctrine, and thus should not be subject to discovery.

What Constitutes an Attorney-Client Communication?

The trial court sided with Waters. It pointed to language in the city’s contract with the attorney, stating that she would investigate the Waters matter, but not offer legal advice. The court ruled that the attorney’s report was not privileged because without the presence of legal advice, it was not an attorney-client communication. The court also held that even if the attorney had offered legal advice in her report, it would not matter because the city waived privilege by asserting the avoidable consequences doctrine.

However, on appeal, a California appeals court overturned this ruling, and held that the attorney’s report was privileged. The decision, City of Petaluma v. Superior Court, states that a legal investigation such as Oppenheimer’s should be considered a provision of legal services, and thus should be subject to both attorney-client privilege and the work product doctrine.

The appeals court pointed to the California Code of Evidence, which defines the term “client” for the purposes of attorney-client privilege in Section 951. It states that a client is someone who consults a lawyer for the purpose of retaining the lawyer, or securing legal service or advice. According to the court, because either legal service or advice is sufficient under the statute, its plain language suggests that an attorney-client relationship can be established even when legal advice is not offered.

The appeals court also held that the city did not waive privilege by asserting the reasonable consequences doctrine because Oppenheimer’s investigation took place after Waters left her job. The court reasoned that the avoidable consequences defense deals with the actions taken while an employee is employed. Because the employee harassment investigation did not occur during the time Waters was employed, the court held that it was not directly at issue in the litigation. [Read more…]

Training on Prevention of Abusive Conduct – New Rules for California Employers

prevention of abusive conduct, labor lawAssembly Bill (AB) No. 2053, “prevention of abusive conduct”, signed into law by California Governor Jerry Brown has added new requirements for employers regarding their harassment policies. AB 2053 amended Section 12950.1 of the California Government Code, which lays out necessary elements in the employee training programs that are required for employers with more than 50 employees. As a result of the new bill, these employers will be required to include training for supervisors on “prevention of abusive conduct.”

What Does “Abusive Conduct” Mean?

AB 2053 contains a definition of abusive conduct. It reads:

“For purposes of this section, ‘abusive conduct’ means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”

While the law requires employers with more than 50 employees to provide training to avoid abusive conduct, it does not actually ban abusive conduct in the workplace. This is to say, it does not create a cause of action for employees who have been subjected to abusive workplace conduct. (However, many forms of abusive conduct were already illegal under other statutes, such as sexual harassment laws.)

Other Requirements of Section 12950.1, Prevention of Abusive Conduct

Under the previously existing requirements of Section 12950.1, California employers with more than 50 employees must provide their supervisory employees with at least two hours of “classroom or other effective interactive training and education regarding sexual harassment.” The training must occur within 6 months of when the employees assume their supervisory positions.

The training must be offered to supervisory employees at least once every two years, and it must include “practical examples aimed at instructing supervisors in the prevention of harassment, discrimination and retaliation.” It must also be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination and retaliation.

12950.1 contains language making it clear that if any particular individual at a workplace does not receive the training, that will not in and of itself cause their employer to become vulnerable to an action alleging sexual harassment. It also states, however, that simply providing the training will not insulate an employer from liability in an action alleging sexual harassment.

(In other words, a sexual harassment suit will not be automatically successful just because a supervisor wasn’t given the proper training. But at the same time, an employer cannot claim that a supervisor cannot be guilty of sexual harassment just because he or she received the training.)

Advice on Meeting the Requirements of 12950.1

AB 2053 went into effect on January 1, 2015 – so if you are a California employer with more than 50 employees, and you have not yet updated the trainings that are given to your supervisors, it’s time to make some changes. If you have any questions about how to comply with the requirements of the new legislation, you can call or email the employment and labor law attorneys at Beck Law P.C., in Santa Rosa Labor Lawyer, to schedule a consultation.

California Employers Must Provide Training on Workplace Bullying Prevention

Stop Workplace BullyingCalifornia employers must now provide training on preventing workplace bullying. This has been a busy period for California employment law.  In addition to laws passed regarding unpaid interns and paid sick leave, Governor Jerry Brown also signed into law a new requirement on workplace training. AB 2053 mandates workplace bullying training be included as a part of mandatory employee training that is already required under California law.

California law currently requires employers with 50 or more employees to provide interactive training on sexual harassment, as well as additional training for supervisors, every two years.

California law specifies how the training must be conducted, including that it:

  • be interactive;
  • inform trainees of the relevant state and federal laws;
  • provide practical information and guidance to trainees;
  • include a description of the remedies available to individuals who are sexually harassed;
  • include practical examples for trainees; and
  • teach trainees on the prevention and correction of harassment.

Beginning January 1, 2015, training on “abusive conduct” will also be required in the biannual trainings.

What is abusive conduct?

The new California law defines “abusive conduct” as that “with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” In other words, California employers will have to conduct trainings on workplace bullying.

Examples of Abusive Conduct

The law gives examples of what is considered abusive conduct, including:

  • derogatory remarks and epithets;
  • verbal threats or intimidating language;
  • humiliating language;
  • physical conduct that is threatening, intimidating or humiliating;
  • insults; and
  • sabotage of an employee’s work performance.

One single act of any of the above will not constitute abusive conduct unless it is extremely severe.

The law stops short of making workplace harassment an actionable offense. However, if the abusive conduct is because an employee is part of a protected category, the employee may have a claim under existing California anti-discrimination laws such as the Fair Employment and Housing Act (“FEHA”).

As a result, the California law mandating workplace bullying training requires employers to provide training on conduct in the workplace that is not actionable in court.  An employee cannot sue for workplace bullying unless the bullying falls under the auspices of FEHA.

Can I sue for Workplace Bullying?

Workplace bullying is currently not illegal in any state, although the issue has been in the media a lot recently.  Twenty six states have some type of legislation regarding workplace bullying at various stages.

If you are being bullied at work, it is important to speak with an experienced attorney.  You may have a claim for discrimination if the bullying is because of a protected category such as age, race, gender or religion.  Our attorneys would be happy to meet with you to discuss your situation.

Are your employee training programs adequate?

California employers may wonder if their workplace policies, training programs and human resources policies are in compliance with the rapidly changing California law.  Beck Law, P.C. can work with employers to advise on compliance with California employment laws.  Contact us today to discuss your concerns.

Workplace Harassment or Just Playful Conversation?

Workplace Harassment

Q: I’m an employer of a local business, and recently there’s been a problem between several employees. One of the employees claims the others are sexually harassing her. I’m not sure the conduct qualifies as harassment, and it seems like just playful conversation. What should I do?

A: A claim of harassment by an employee should be taken very seriously by the employer, as harassment of any type, sexual, discriminatory or otherwise, continues to be a common problem in the workplace in California. The California Code of Regulations is helpful in identifying several different layers of sexual harassment, but these principles may also be applied to other types of harassment as well:

  1. Where submission to harassment is a condition of employment;
  2. Where the choice to submit or not affects employment decisions;
  3. When the purpose or effect of the conduct alleged as harassment unreasonably interferes with the employee’s work performance;
  4. When the purpose or effect of the conduct alleged as harassment unreasonably interferes with the employee’s work performance; or
  5. When the conduct alleged to be harassment creates an intimidating, hostile or offensive work environment.

Fair Employment and Housing Act

2 Cal Code Regs §§7287.6(b), 7291.1(f)(1). These categories set the prohibitions on the variety of conduct by employers and co-employees. Under the Fair Employment and Housing Act (FEHA), California law defines two types of methods to prove sexual harassment in the workplace: conduct which establishes a quid pro quo, and conduct creating a hostile work environment. Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 42 Cal.Rptr.3d 2, 11.

Sexual Favoritism

Does your employee contend that the harassment is a result of some quid pro quo arrangement with another employee or manager? The California Supreme Court defined such quid pro quo harassment as conduct that leads to “sexual favoritism”, including the award of job benefits or bonuses if the employee submits to sexual advances. Miller v. Department of Corrections (2005) 36 Cal.4th 446, 461-462. However, this also incorporates the converse, such as a manager threatening to demote or take punitive action against an employee should they not submit to sexual advances or conduct requested, expressly or impliedly.

Your employee may also be referencing a claim of a hostile work environment. The California Supreme Court has also set forth the standards in Lyle in relation to what constitutes a hostile work environment sufficient to create harassment:

Under Title VII, a hostile work environment sexual harassment claim requires a plaintiff employee to show she was subjected to sexual advances, conduct, or comments that were (1) unwelcome (see Meritor, supra, 477 U.S. at p. 68, 106 S.Ct. 2399); (2) because of sex (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (Oncale)); and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment (id. at p. 81, 118 S.Ct. 998; Meritor, supra, 477 U.S. at p. 67, 106 S.Ct. 2399). In addition, she must establish the offending conduct was imputable to her employer. (Meritor, supra, 477 U.S. at pp. 69-73, 106 S.Ct. 2399.)

Lyle, 42 Cal.Rptr.3d at 12. Whenever an employee performs any type of investigation prompted by a claim of harassment, these three elements are necessary and essential questions to ask and conclusions to determine before taking any action. It may very well be that such “harassment” is in fact nothing more than workplace conversation which the employee has taken out of context, for the mere discussion of sex or vulgar, sexual language is generally insufficient to show the harassment was “because of sex”; the conduct must involve some treatment to the employee on the basis of sex itself.

In either sense, every employer should take a claim of harassment seriously. [Read more…]


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