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San Francisco Employment Law Blog

California may adopt new workplace sexual harassment laws

Three bills dealing with workplace sexual harassment are under consideration in the California legislature. SB-1343 will update the law that requires workplaces where at least 50 people work to give supervisors sexual harassment training within six months of the supervisor beginning the job and then every two years. It will require companies that have at least five employees to train all employees in sexual harassment by Jan. 1, 2020. This will need to be at least two hours of training every two years. Furthermore, the Department of Fair Employment and Housing will be required to develop a two-hour training program that employers have the option to use.

If AB-1867 passes, companies that have at least 50 employees will be required to keep employee complaints about sexual harassment for 10 years. The DFEH will have the authority to require the employer to comply.

Workers face discrimination for pregnancy and breastfeeding

Examples of discrimination against parents in workplaces in California and nationwide are not hard to find. Although people might expect the Family Medical Leave Act to provide job protections for pregnancy, birth and caring for family members, the law only applies to about 60 percent of employees. Employers routinely deny workplace accommodations to pregnant or breastfeeding women or punish them for taking leave.

Female dockworkers at West Coast ports reportedly experienced sexual discrimination. They lose their seniority when they take pregnancy leave, which deprives them of opportunities to ascend to lucrative union positions. Meanwhile their male colleagues face no penalties when they take leave for workplace injuries or military duty.

Fighting back against wage discrimination

The ongoing gender pay gap can have a material impact on women workers in California as well as their entire families. According to the Institute of Women's Policy Research, women earn 80.5 cents for every dollar that men earn at the workplace. April 10 marks Equal Pay Day, commemorated annually to highlight that women in the United States must work 15 months to earn the same amount that men make in just one year. Of course, the impact of the gender pay gap is compounded by the intersection with race.

Latina women make 54 cents for every dollar men earn, and black women earn 63 cents for every dollar their male colleagues make. While the immediate impact can be more severe for women in low-wage industries, the gap ranges throughout the pay structure from hourly workers to relatively highly paid professionals. Wage discrimination doesn't only hurt women as individuals; it can carry significant social costs. Women who earn less have less money to get out of debt, support their families, pay for education, buy a home or retire.

Target agrees to settle lawsuit over job background checks

California job seekers may be interested to learn that Target has agreed to settle a lawsuit that alleged its employment background check policy discriminates against African-American and Latino applicants. If the deal is approved by a New York federal court, the retailer will pay $3.7 million and offer priority job placement to those who were wrongly denied employment due to criminal screenings.

According to the lawsuit, which was filed by the NAACP Legal Defense and Education Fund on behalf of affected applicants, Target's background check process is overly broad and unfairly discriminates against black and Latino job applicants. This is because the criminal justice system also discriminates against black and Latino defendants, making them more likely to have a criminal record. The two main plaintiffs in the case were initially offered jobs only to be denied employment over decades-old convictions that were unrelated to the positions they were applying for.

Report says IBM engaged in age discrimination

California tech workers may be interested to learn about a new report that alleges IBM let go 20,000 employees as part of widespread age discrimination. The report says that IBM decided to switch its focus since it was lagging behind competitors, and as part of that change, it focused on getting more millennials in its workforce.

Discriminating against workers just because they are over the age of 40 is prohibited by the Age Discrimination in Employment Act. While IBM says it has done nothing wrong, its former employees report various techniques to push them out of the company in favor of younger colleagues. Methods allegedly included requiring older employees to relocate, laying them off or firing them.

Former NFL cheerleader files EEOC discrimination complaint

Employers in California and around the country are expected to comply with all state and federal civil rights laws, and workers who feel that they have been treated unfairly based on their gender, national origin, religion or race can file complaints with the Equal Employment Opportunity Commission. One such complaint was submitted recently by a former member of the New Orleans Saints cheerleading squad who claims that she was required to follow highly restrictive rules that did not apply to the male players.

The woman maintains that policies put into place by the New Orleans Saints violate the National Football League's personal conduct policy. NFL rules prohibit unlawful workplace discrimination such as rules that apply to men but not women. The woman says that cheerleaders were ordered to have virtually no contact with the playing staff and even had orders to leave restaurants should a player arrive. A New Orleans Saints representative said that the team had not discriminated against the woman and would mount a vigorous defense in the appropriate forum.

Court rules transgender workers protected against discrimination

California employees who identify as transgender may be interested to learn that on March 7, a federal judge ruled that a Detroit funeral home that terminated a funeral director for transitioning violated Title VII of the Civil Rights Act of 1964. This decision extends the protections of Title VII. This law already prevented employers from discriminating against employees on the basis of religion, race, sex or national origin.

In this case, the employee was terminated after telling the boss that they intended to transition from male to female. The boss testified in court that he indeed fired the employee due to the fact that the employee intended to represent herself as a woman instead of a man. The boss told the court that the basis for firing the employee was due to his religious beliefs that transitioning violated "God's command."

Wrongful termination in an at-will employment state

California is one of the few states that has what is known as a "covenant of good faith" exception to the at-will employment arrangement that is the law in every state except Montana. At-will employment means that either party can end the relationship at any time with no notice and and for any reason. However, employees are still protected from wrongful termination.

The covenant of good faith exception assumes that there should be fair dealings in every employee-employer relationship and that if a person is terminated, it should be for what is known as a "just cause". When a court determines whether an employer had just cause to terminate an employee, it looks at how long the employee worked there, communication about the employee's performance, the company's policies, any representations about job security and what is fair.

Woman suing employer for disability discrimination

Chobani brand yogurt is sold in supermarkets in California and around the company. The company producing the food has been the target of three lawsuits from employees alleging discrimination. In the most recent case, a woman has claimed that her request for workplace accommodations for her disability led to her dismissal. The Equal Employment Opportunity Commission has deemed her lawsuit worthy of advancing to trial.

Her legal complaint filed in federal court describes how the company immediately terminated her position after she asked for reasonable accommodations for her disability. She made this request in 2017 after trying to return from a medical leave. She had worked for the company as a case pack operator since 2013. The lawsuit accuses the yogurt company of intentionally ignoring her legal protection from disability discrimination. The lawsuit aims to collect a settlement for the woman that includes back pay, front pay, benefits, legal fees and punitive damages. In 2017, two other lawsuits were filed by former employees who said they lost their jobs because of their age. The company has not offered any public comments about the most recent case.

Awareness of sexual harassment may lead to more complaints

Companies in California and throughout the country are expecting an increased number of sexual harassment cases in 2018. The HR Certification Institute did a poll of 200 people who were HR leaders within their organizations to get their feelings about the matter. Of those polled, 79 percent said that sexual harassment training should be a high priority, compared to just 40 percent in 2017.

The awareness that the #MeToo movement brought to the issue is one primary reason why the number of sexual harassment complaints is expected to rise in the short term. According to the CEO of HRCI, the movement should also encourage companies to prevent long-term harassment issues. Of those who took part in the HRCI poll, only 7 percent said that sexual harassment doesn't take place within their organizations.

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