Deskin Law Firm

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

Unwelcome sexual advances, requests for sexual favors, and other verbal, written or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

* The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
* The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
* The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
* Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
* The harasser's conduct must be unwelcome.

It is helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available. It is also helpful to have proof of the harassment whether written or recorded.

Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by providing sexual harassment training to their employees and by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on sex or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.

If you feel that you are being sexually harassed at work, you can contact Deskin Law Firm so we can review your situation.

Workplace Harassment is a Form of Discrimination

Unlawful harassment is a form of discrimination that violates Title VII of the Civil Rights Act of 1964 and other federal authority.

Unwelcome verbal or physical conduct based on race, color, religion, sex (whether or not of a sexual nature and including same-gender harassment and gender identity harassment), national origin, age (40 and over), disability (mental or physical), sexual orientation, or retaliation (sometimes collectively referred to as "legally protected characteristics") constitutes harassment when:

• The conduct is sufficiently severe or pervasive to create a hostile work environment; or
• A supervisor's harassing conduct results in a tangible change in an employee's employment status or benefits (for example, demotion, termination, failure to promote, etc.).

Hostile work environment harassment occurs when unwelcome comments or conduct based on sex, race or other legally protected characteristics unreasonably interferes with an employee's work performance or creates an intimidating, hostile or offensive work environment. Anyone in the workplace might commit this type of harassment; a management official, co-worker, or non-employee, such as a contractor, vendor or guest. The victim can be anyone affected by the conduct, not just the individual at whom the offensive conduct is directed.

Examples of actions that may create sexual hostile environment harassment include:

• Leering, i.e., staring in a sexually suggestive manner
• Making offensive remarks about looks, clothing, body parts
• Touching in a way that may make an employee feel uncomfortable, such as patting, pinching or intentional brushing against another's body
• Telling sexual or lewd jokes, hanging sexual posters, making sexual gestures, etc.
• Sending, forwarding or soliciting sexually suggestive letters, notes, emails, or images

Other actions which may result in hostile environment harassment, but are non-sexual in nature, include:

• Use of racially derogatory words, phrases, epithets
• Demonstrations of a racial or ethnic nature such as a use of gestures, pictures or drawings which would offend a particular racial or ethnic group
• Comments about an individual's skin color or other racial/ethnic characteristics
• Making disparaging remarks about an individual's gender that are not sexual in nature
• Negative comments about an employee's religious beliefs (or lack of religious beliefs)
• Expressing negative stereotypes regarding an employee's birthplace or ancestry
• Negative comments regarding an employee's age when referring to employees 40 and over
• Derogatory or intimidating references to an employee's mental or physical impairment

Harassment that results in a tangible employment action occurs when a management official's harassing conduct results in some significant change in an employee's employment status (e.g., hiring, firing, promotion, failure to promote, demotion, formal discipline, such as suspension, undesirable reassignment, or a significant change in benefits, a compensation decision, or a work assignment). Only individuals with supervisory or managerial responsibility can commit this type of harassment.

A claim of harassment generally requires ALL the following elements:

1. The complaining party must be a member of a statutorily protected class;
2. S/he was subjected to unwelcome verbal or physical conduct related to his or her membership in that protected;
3. The unwelcome conduct complained of was based on his or her membership in that protected class;
4. The unwelcome conduct affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with his or her work performance and/or creating an intimidating, hostile or offensive work environment.

What is Not Harassment?

The anti-discrimination statutes are not a general civility code. Thus, federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. Rather, the conduct must be so objectively offensive as to alter the conditions of the individual's employment. The conditions of employment are altered only if the harassment culminates in a tangible employment action or is sufficiently severe or pervasive to create a hostile work environment.

If you feel you may have a hostile work environment claim, feel free to contact Deskin Law Firm.

Employers cannot discriminate against you because of your race, national origin, gender, religion and because of other characteristics. They also cannot discriminate against you because you associate with (are related to, are friends with or are married to) people who are of a who are of a race, national origin, gender, religion that they do not like.

Employers are not allowed to discriminate against employees or applicants for employment in regards to any of the following characteristics:

- Race or Color Discrimination,

- National Origin Discrimination,

- Ancestry Discrimination (in California),

- Sex and Gender Discrimination,

- Sexual Orientation Discrimination (in California),

- Marital Status Discrimination (in California),

- Pregnancy Discrimination,

- Age Discrimination (if 40 or older),

- Physical or Mental Disability Discrimination,

- Medical Condition Discrimination (in California),

- Religious Discrimination, and

- Military Status Discrimination.

» Review The Other Three Factors To Determine If You Are Protected Against Discrimination

To determine whether you are protected against discrimination from your employer, there are three other things to consider:
1. Whether you are considered an employee who is covered under the law.
2. Whether your employer is subject to the anti-discrimination laws.
3. Whether your employer's conduct is considered discriminatory under the law.
4. What reason your employer discriminates against you.

» Contact Deskin Law Firm About Your Discrimination Situation

If you feel you may be unlawfully discriminated against, contact us so we may review your situation with you.

There are many ways in which employers discriminate. An employer may be discriminating against you if he or she is:

- failing or refusing to hire you,

- failing or refusing to refer you for employment,

- interfering with you employment opportunities with another employer,

- firing you,

- failing or refusing to give you pension benefits,

- denying you a raise or promotion, especially when raises are the norm for workers who perform satisfactory work,

- limiting, classifying, or segregating you in any way that deprives you of employment opportunities or otherwise adversely affect your employment or your potential employment status,

- refusing to select you for or discharging you from any program established to provide apprenticeship or other job training to you, or

- harassing an employee, in California.

- creating a hostile work environment

- intentionally creating objectively intolerable working conditions or knowingly allowing them to exist

Furthermore, an employer may not retaliate against you if you complain that they are discriminating, testify, or assist or participate in any manner in any investigation, proceeding or hearing of a discrimination case.

» Review The Other Three Factors To Determine If You Are Protected Against Discrimination

To determine whether you are protected against discrimination from your employer, there are three other things to consider:
1. Whether you are considered an employee who is covered under the law.
2. Whether your employer is subject to the anti-discrimination laws.
3. Whether your employer's conduct is considered discriminatory under the law.
4. What reason your employer discriminates against you.

» Contact Deskin Law Firm About Your Discrimination Situation

If you feel you may be unlawfully discriminated against, contact us so we may review your situation with you.

Just because you have a contract that refers to you as an "independent contractor" does not mean that you actually are an independent contractor. The actual relationship that you have with your employer must be analyzed to determine whether you are an employee or an independent contractor.

There are many factors to consider to determine whether you are an independent contractor or employee. The most important factor is your employer's right to control the manner and means by which your work product is accomplished. If you control how you produce your work product then you are more likely an independent contractor. If your employer controls how you produce your work product then you are more likely an employee.Employers oftentimes improperly classify their employees as independent contractors so that they, the employer, do not have to pay payroll taxes, the minimum wage or overtime, comply with other wage and hour law requirements such as providing meal periods and rest breaks, or reimburse their workers for business expenses incurred in performing their jobs. Additionally, employers do not have to cover independent contractors under workers' compensation insurance, and are not liable for payments under unemployment insurance, disability insurance, or social security.

Just because you have a contract that refers to you as an "independent contractor" does not mean that you actually are an independent contractor. The actual relationship that you have with your employer must be analyzed to determine whether you are an employee or an independent contractor.

There are many factors to consider to determine whether you are an independent contractor or employee. The most important factor is your employer's right to control the manner and means by which your work product is accomplished. If you control how you produce your work product then you are more likely an independent contractor. If your employer controls how you produce your work product then you are more likely an employee.

Other factors to be considered:
- the amount of skill required to do the work;
- who owns the tools needed to do the work;
- whether you are working at your own office or at your employer's office;
- how long you have been working for your employer;
- whether your employer has the right to assign additional projects to you;
- the extent of your employer's discretion over when and how long you work;
- how your employer pays you;
- if your employer hires and pays your assistants;
- whether your employer gives you benefits;
- how your employer treats you with regard to taxes;
- how the work relationship may be terminated; and
- whether you receive vacation time.

Partners are not employees, but you must truly be a partner. Factors to consider to determine if you are actually a partner include:
- whether you share of financial risks or benefits;
- whether you are personally liable for partnership liabilities;
- whether you are investing in the business;
- whether you have voting rights in the business;
- whether you have the right to fire or hire employees; and
- whether you have the ability to exercise control over the business.

The potential liabilities and penalties are significant if you are treated as an independent contractor and later found to be an employee. If you feel that you improperly classified as an independent contractor, contact us for help in dealing with your situation confidentially.

Both "employees" and "applicants for employment" are protected against employment discrimination.

Employees include people who:

- actually work for an employer,
- former employees who have resigned or been fired,
- are required to work in order to receive welfare benefits, workfare.

Applicants for employment include:

- people who applied for employment,
- people who were deterred from applying because the employer's discriminatory practices had created an atmosphere in which non-applicants understood it was fruitless to apply for employment,
- people posing as job applicants to gather evidence of discriminatory practices even if they never intended to accept the job for which they applied,
- US citizens employed by most U.S. owned or controlled companies located in foreign countries,
- lawfully admitted resident aliens.

Employees or applicants for employment do not include:

- volunteers that are unpaid are not employees and therefore are not protected from discrimination,
- non-citizens employed overseas by US employers,
- independent contractors.

» Review The Other Three Factors To Determine If You Are Protected Against Discrimination

To determine whether you are protected against discrimination from your employer, there are three other things to consider:
1. Whether you are considered an employee who is covered under the law.
2. Whether your employer is subject to the anti-discrimination laws.
3. Whether your employer's conduct is considered discriminatory under the law.
4. What reason your employer discriminates against you.

» Contact Deskin Law Firm About Your Discrimination Situation

If you feel you may be unlawfully discriminated against, contact us so we may review your situation with you.

For you to be protected by the discrimination laws, your employer must be subject to the law.

Unlawful employment practices are prohibited when they are conducted by:

- employers that have a minimum of 15 employees on their payroll. The 15 employees does not include independent contractors or partners. In California, the employer need only regularly employ 5 or more employees.

- employment agencies that affect employment opportunities.

- labor organizations, meaning organizations in which employees participate and which deals with employers grievances, labor disputes, wages, rates of pay, hours or other terms or conditions of employment.

- joint labor-management committees controlling job training programs.

Certain types of discrimination are actually allowed, like discrimination:

- by religious organizations when they restrict employment to members of their own faith, or in California non-profit religious organizations can discriminate based on any characteristic,

- against members of the Communist Party or Communist-front organizations,

- against volunteers,

- in favor of American Indians if the business is on or near an Indian reservation.

» Review The Other Three Factors To Determine If You Are Protected Against Discrimination

To determine whether you are protected against discrimination from your employer, there are three other things to consider:
1. Whether you are considered an employee who is covered under the law.
2. Whether your employer is subject to the anti-discrimination laws.
3. Whether your employer's conduct is considered discriminatory under the law.
4. What reason your employer discriminates against you.

» Contact Deskin Law Firm About Your Discrimination Situation

If you feel you may be unlawfully discriminated against, contact us so we may review your situation with you.