What is Sexual Harassment in the Workplace?

Sexual harassment laws protect your rights in the workplace. But what is sexual harassment? And what constitutes sexual harassment in the workplace?

Workplace sexual harassment includes unwelcome sexual advances, verbal or physical harassment of a sexual nature or requests for sexual favors.

Employers have a responsibility to create a workplace free from sexual harassment and employees are entitled to a working environment free from sexual harassment.

Keep reading to learn more about what constitutes sexual harassment, the definition of sexual harassment, and sexual harassment examples.

What is Sexual Harassment?

Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. In addition, offensive remarks about a person’s sex are considered sexual harassment.

Sexual harassment is a form of sex discrimination. Federal, state, and local sexual harassment laws protect employees from sexual harassment at work. Sexual harassment can also create a hostile work environment.

What Sexual Harassment Looks Like

Not all victims of sexual harassment are women, and not all harassers are men. Both men and women can be the targets of sexual harassment or a hostile work environment, and both men and women can harass people. It is still sexual harassment if the victim and harasser are of the same gender. Harassing someone because of transgender status also qualifies as sexual harassment.

Not all sexual harassers are bosses or supervisors. Coworkers, teachers, and vendors employed by the company can also be guilty of sexual harassment.

What is Sexual Harassment: Definition

What constitutes sexual harassment? What is the legal definition of sexual harassment? The sexual harassment definition includes harassment in three broad categories.

 

 

1.  
   
   
   1. Unwanted sexual contact: Any unwelcome physical contact may qualify as sexual harassment. If a coworker, supervisor, or teacher touches, hugs, or brushes up against you, this can be sexual harassment.
   
   
    

 

 

1.  
   
   
   1. Hostile work environment: Offensive remarks about sex, sexually explicit communications, and sexual images can all create a hostile work environment.
   
   
    

 

 

1.  
   
   
   1. Quid pro quo: If a boss or supervisor demands sexual favors for a job offer, promotion, raise, or grade, this qualifies as quid pro quo sexual harassment.
   
   
    

 
The legal definitions of sexual harassment cover multiple behaviors, actions, and other sexual harassment examples. For example, sexual harassment at work can include physical sexual harassment, verbal sexual harassment, and visual sexual harassment.

What is Sexual Harassment? Examples of Sexual Harassment at Work

Examples of sexual harassment include:

 

 

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  • Rape or sexual assault
  
  
   

 

 

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  • Unwanted physical contact, including unnecessary touching, hugging, or back and neck messages
  
  
   

 

 

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  • Standing unnecessarily close, hovering, or intentionally brushing up against someone
  
  
   

 

 

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  • Sexually explicit statements, comments, or innuendos
  
  
   

 

 

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  • Hand gestures such as tracing someone’s figure in the air
  
  
   

 

 

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  • Unwanted personal questions about social or sexual life
  
  
   

 

 

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  • Telling lies or spreading rumors about a person’s personal sex life
  
  
   

 

 

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  • Suggestive whistles, catcalls, kissing sounds or howling
  
  
   

 

 

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  • Facial expressions such as winking, throwing kisses, or smacking or licking lips
  
  
   

 

 

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  • “Elevator eyes,” suggestively looking a person up and down
  
  
   

 

 

•  
  
  
  • Sexual remarks about a person’s body or clothing
  
  
   

 

 

•  
  
  
  • Indecent exposure, including the harasser, touching or rubbing themselves sexually around another person
  
  
   

 

 

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  • Showing sexually explicit images such as pictures or graffiti
  
  
   

 

 

•  
  
  
  • Sending unwanted sexual communications by phone, letter, text message, or email
  
  
   

 

 

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  • Unwelcome invitations to date or have sex
  
  
   

 

 

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  • Referring to an adult as a girl, hunk, doll, babe, or honey
  
  
   

 
The sexual harassment definition also includes demanding sexual favors for positive treatment, including a job offer, a promotion, a grade, or another employment decision.

What Constitutes Sexual Harassment in the Workplace?

What’s considered sexual harassment varies depending on the state laws and local protections. In New York, sexual harassment in the workplace includes creating a hostile work environment through sexualized behavior and unwelcome physical contact. The sexual harasser does not have to be a boss in these situations; he or she can be a coworker, subordinate, or vendor.

Bosses, supervisors, or others in a position of authority are guilty of sexual harassment if they demand physical contact in exchange for a promotion, job offer, or another employment benefit. This can include pressuring an employee to go on a date or demanding sex.

What’s Sexual Harassment at School?

In schools, sexual harassment occurs when teachers, administrators, and others in positions of power abuse their authority over students, coworkers, or colleagues. This can include creating a hostile work environment, unwanted touching, or demanding sexual favors for grades or positive evaluations.

Sexual harassment laws protect students, including college students. For example, college students who are sexually harassed by faculty members or staff can file a sexual harassment lawsuit against the college or university. In some cases, schools are covered by different laws than workplaces. A sexual harassment lawyer can help determine whether victims of sexual harassment at school have a case.

What Does Sexual Harassment Mean?

The law defines the line between what sexual harassment is and what sexual harassment is not. Sexual harassment can occur in any workplace. One national study found that 38% of women and 13% of men reported experiencing sexual harassment in the workplace.

What does sexual harassment include? It depends on the state. If you work in New York City, the NYC Human Rights Law provides some of the strongest sexual harassment protections in the country. The city’s anti-discrimination laws also protect workers from discrimination based on gender.

Under New York City’s sexual harassment laws, any unwanted sexual behavior is illegal. This includes touching, sexual jokes and images, and sexual comments and gestures.

What to do about Sexual Harassment?

If you are a victim of sexual harassment, you can reach out to a sexual harassment lawyer for a free consultation. You may be entitled to back pay, compensatory damages, punitive damages, and other financial settlements.

You can also read more about sexual harassment protections: Sexual Harassment Rights, Laws, and Potential Damages.

Sexual harassment lawyers

Competition Agreement Law

Historically, California courts viewed covenants as not competing with unlawful restraints of trade.  Eventually, California courts began to enforce ancillary restraints on competition, such as that incident to employment or partnership agreements, under the rule of reason. The rule of reason states that a limited restraint on competition is valid when the restraint is reasonable. A restraint is reasonable if it is necessary to protect an employer's legitimate interest.

California courts thus enforce non-competition agreements, but only if they are ancillary to another agreement, the employer has a protectable business interest and the restriction against the competition is no greater than that necessary to protect the employer's legitimate business interest.

Ancillary to Another Agreement

California courts will not enforce a stand-alone non-competition agreement. Instead, California courts only enforce the restriction against the competition, if they are a part of or ancillary to another the agreement, such as an:

 

 

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  • an employment agreement,
  
  
   

 

 

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  • a contract for the sale of a business,
  
  
   

 

 

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  • a stock buy/sell agreement or
  
  
   

 

 

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  • an independent contractor agreement
  
  
   

 
California courts review non-competition agreements in an employment agreement with "strict" scrutiny but take a more lenient approach to restrictions contained in a contract for the sale of a business.

Legitimate Employer Business Interests

California courts recognize the following employer business interests as legitimate:

 

 

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  • customers
  
  
   

 

 

•  
  
  
  • trade secret and proprietary information and
  
  
   

 

 

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  • goodwill with customers, agents, and vendors.
  
  
   

 
California courts will not enforce non-competition agreements whose only purpose is to eliminate ordinary competition.

Reasonable Restrictions

Non-compete covenants are reasonable if the restrictions are limited by:

 

 

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  • duration
  
  
   

 

 

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  • geographic scope or
  
  
   

 

 

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  • customer relationships.
  
  
   

 
Reasonableness is a fact-intensive inquiry that depends on the totality of the circumstances.  California courts balance the employer's need to protect its business interest against hardship to the employee and the likely injury to the public.

Non-competition agreements that restrict physicians and lawyers from accepting patients or clients could injure the public or the public's right to choose their medical or legal professional.  Valley Med. Specialists v. Farber, 982 P.2d 1277, 1281-1282 (Ariz. 1999). California courts will not enforce such restrictions if the injury to the public outweighs the employer's business interest. In addition, by California statute, "broadcast employers" cannot require a current or prospective employee to agree to a non-compete clause. Ariz. Rev. Stat. 23-494.

 

Judicial Modifications of California Non-competition Agreements

California courts will "blue pencil" overly broad restrictions, but only if the agreement is divisible, as evident from the terms of the agreement. If the agreement is divisible, a California court can sever the unreasonable restriction. California courts will not rewrite the parties' agreement to remove an offensive restriction and replace it with a less restrictive one.

Although California courts will not rewrite the parties' agreement, a federal court applying California law upheld the party's prior agreement to abide by lesser, or "step down," restrictions.  Compass Bank v. Hartley, 430 F. Supp. 2d 973 (D. Ariz. 2006).

A consequence of Breaching an Enforceable Non-Competition Agreement

An employer who proves that an employee breached an enforceable non-competition clause can:

 

 

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  • recover its losses, even if the amount is uncertain;
  
  
   

 

 

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  • obtain an injunction, and
  
  
   

 

 

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  • extend the duration of a breached non-competition restriction.
  
  
   

 

 

Attorneys Fees

California revised statute section 12-341 allows a court in "any contested action arising out of a contract" to award the successful party reasonable attorney fees to mitigate the burden of the expense of litigation to establish a just claim or a just defense. The attorney fee the award must be made by the court and not the jury and need not equal to or relate to the attorney fees actually paid. However, the award cannot exceed the amount that the prevailing party actually paid or agreed to pay.

If a party to a California non-competition case proves with clear and convincing evidence that:

 

 

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  • the claim or defense constitutes harassment,
  
  
   

 

 

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  • is groundless and
  
  
   

 

 

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  • is not made in good faith.
  
  
   

 
In making the award, the court may consider any evidence it deems appropriate and shall receive this evidence during a trial on the merits of the cause, or separately, regarding the number of fees that are in the best interest of the litigating parties.

Talk to a discrimination attorney

Terminations That Violate Public Policy

Filing Sexual Harassment Claims In California

Victims of sexual harassment in California can vindicate their right to be free from sexual harassment under California law by filing a charge or claim with the California Department of Human Rights, with the federal Equal Employment Opportunity Commission (EEOC), or by filing the suit in court. California sexual harassment victims can also pursue claims under Title VII of the federal Civil Rights Act of 1964

Filing a Charge or Claim with the California Department of Human Rights

Sexual Harassment claims are brought in California by filing a charge or claim under the California Human Rights Act. A sexual harassment charge under the California Human Rights Act is filed with California Department of Human Rights ("IDHR").

Upon receiving a charge of sexual harassment, the California Department of Human Rights conducts a client interview and a fact-finding conference and decides as to whether the charge or claim should proceed to be heard before the Human Rights Commission ("HRC"). A sexual harassment claim can also be filed with the United States Equal Employment Opportunity Commission ("EEOC").

Filing a Sexual Harassment Suit in California State Court
As of January 1, 2008, a California sexual harassment victim can file a claim of sexual harassment in state court after first filing with the IDHR.  The procedure is as follows:

 

 

1.  
   
   
   1. If the Director of the IDHR files a dismissal order based on a "lack of substantial evidence," the victim, referred to as the "complainant" by this law, may either seek review of the dismissal order with the IDHR or file a civil action in circuit court.
      1.  
         
         
         1. If the complainant decides to seek review with the IDHR, he or she must file a request within 30 days of the receipt of the IDHR Director's notice of dismissal. Upon seeking review with the IDHR, the complainant is barred from later filing a civil action.
         
         
          
      
      
       
       
      1.  
         
         
         1. If the complainant chooses to file a civil action, he or she must file it within 90 days of the receipt of the IDHR's Director's notice of dismissal.
         
         
          
      
      
       
   
   
    

 

 

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   1. If the Director of the IDHR finds substantial evidence of a violation, the complainant has the right to file a civil action in the circuit court or request that the IHRC file a complaint with the IDHR. The complainant must file suit in an appropriate circuit court within 90 days after receipt of the Director's notice.
   
   
    

 

 

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   1. If the IHRC does not issue a determination of whether it found substantial evidence of a civil rights violation within 365 days after the charge is filed, the complainant has 90 days to either file a complaint with the IDHR or commence a civil action in circuit court.
   
   
    

 
For more info please contact a sexual harassment lawyer

Overview Of Unlawful Employment Discrimination

 

Unlawful employment discrimination means adverse treatment of employees motivated by the employees' age, sex, race, creed, religion, national origin, disability, veterans status, or other protected class status.  A protected class is one identified by law as deserving protection from employment or other forms of discrimination.

Since motivation is invisible, discrimination is difficult, but not impossible, to prove. Pretext, or proof that an employer tried to cover up discrimination by providing a false reason for the adverse treatment, is one of the most effective ways to prove discrimination.

Courts generally remedy the damage done to victims of discrimination with make-whole relief, which attempts to put the victim in the place he or she would have been absent from the discrimination.  Make whole relief includes back pay, reinstatement, and, in some cases, money damages for emotional pain and suffering and attorneys' fees.

Employers Covered by Anti-Discrimination Laws

The anti-discrimination laws do not apply to all employers. For example, most federal discrimination laws only cover employers of 15 or more, while the federal age discrimination law covers employers of 20 or more. States that enact their own anti-discrimination laws often cover smaller employers.

Employees Protected from Discrimination

Every employee has the right to be free from discrimination. White males have the right to be free from discrimination or harassment based on their race and gender, even if they have not been the historical targets of invidious employment discrimination.

Employees also all have the right to be free from discrimination based on protected class status. If unwelcome sexual hostility directed towards men interferes with a male's ability to perform his job, he has a right to file suit to prevent it and to recover the damage that it caused him.

Defining Protected Classes

Governments have passed discrimination laws in response to known, existing biases that prevented a specific class of people from achieving equal employment opportunities. Historically, classes subject to invidious discrimination have been defined along racial, gender, disability, religious, and age lines. Discrimination based on race, gender, disability, religion, creed, and age is therefore unlawful.

Until other classes of people are protected, biases that operate to deny them equal opportunities are not unlawful.  For example, an employer could refuse to hire an applicant who was born under the sign of Aquarius without breaking the law. Since astrological sign discrimination is not so prevalent as to require governmental intervention in private employment, governments have not passed laws to protect Aquarians.

 

Proving Unlawful Employment Discrimination.

Employment discrimination comes in two forms, "disparate" (i.e., differing) treatment and disparate impact. Disparate impact describes differing treatment resulting from an otherwise neutral employment condition, like skills or agility test.  This article does not directly address disparate impact discrimination.

The type of discrimination discussed here, disparate treatment, requires proof that the employee's protected class was a motivating factor for the adverse employment decision. In other words, in an age discrimination case, the employee must prove that his or her age was a motivating factor in the employer's adverse decision.

Most discriminators do not admit discrimination and many actively deny it.  Some may even believe that an unlawful bias did not motivate them even though that was in fact the case. Thus, employment discrimination is exceptionally hard, but not impossible, to prove. Successful proof of employment discrimination requires some or all of the following evidence:

 

 

1.  
   
   
   1. Direct, or "smoking gun" evidence, such as:
      1.  
         
         
         1. disparaging remarks;
         
         
          
      
      
       
       
      1.  
         
         
         1. slurs;
         
         
          
      
      
       
       
      1.  
         
         
         1. admissions of bias (“women don't belong in law enforcement/should not be on construction sites/are bad at math”);
         
         
          
      
      
       
       
      1.  
         
         
         1. disparaging or demeaning jokes or treatment.
         
         
          
      
      
       
   
   
    

 

 

1.  
   
   
   1. Indirect evidence, such as:
      1.  
         
         
         1. statistics (an all-white, male executive team or a higher than expected proportion of older workers laid off);
         
         
          
      
      
       
       
      1.  
         
         
         1. Other cases of similar discrimination; and
         
         
          
      
      
       
   
   
    

 

 

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   1. Pretext, which is a false reason given by the employer to cover up the unlawful reason.
   
   
    

 

Proving Pretext

Since motivation is invisible, the U.S. Supreme court adopted a procedure for proving unlawful discrimination. It starts with what lawyers call a “prima facie” case.  A prima facie case requires proof that:

 

 

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   1. The employee is a member of a "protected class";
   
   
    

 

 

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   1. The employee is qualified for the job;
   
   
    

 

 

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   1. The employee was terminated, demoted, or otherwise treated worse than someone outside of the protected class; and
   
   
    

 

 

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   1. The employee was damaged by that discrimination (i.e., lost wages or suffered a compensable injury)
   
   
    

 
If a discrimination victim proves a prima facie case of discrimination, he or she will win, unless the employer states a legitimate, non-discriminatory reason for its decision.

Note that the employer only needs to state a non-discriminatory reason. The employer does not have to prove it had a non-discriminatory reason or otherwise shoulder the burden of proving it did not discriminate. However, once the employer states a non-discriminatory reason, the victim can attack the stated reason as pretextual.  A reason is pretextual if it is not the real reason or not a sufficient reason to motivate the adverse employment decision.  In that event, a judge or jury may infer from the employer's false reason that the employer tried to cover up an unlawful reason.

Discrimination Damages

The damages, or money recoverable to remedy proven discrimination, depends on the type of discrimination and whether state or federal anti-discrimination laws apply.  Federal discrimination laws allow victims of most types of discrimination to recover their lost wages and benefits. Some federal and state laws permit the recovery of damages for emotional pain and suffering.

Each anti-discrimination law specifies or limits the amount and types of recoverable damages.  In general, federal law caps damages at certain levels, depending on the size of the employer.  Conversely, in some types of cases the court may or must double the employee's lost wages where, for example, the employee proves that the employer acted willfully.

Reinstatement

Most discrimination remedies are guided by the goal of "make-whole relief." Make whole relief describes placing the discrimination victim in the same place he or she would have been had the discrimination not occurred. Back pay is a component of make-whole relief since compensates the discrimination victim for lost earnings.

Reinstatement is the other significant component of make-whole relief. It remedies the harm done to the discrimination victims going forward by literally placing them placing in the position from which they were removed.

In some cases, an employer may prove that reinstatement is not feasible. In that event, a court should order the employer to pay front pay. Front pay includes the wages and benefits that an employee would have earned if reinstated, minus what the employee can earn in other employment, up to a point in time at which the court concludes the victim will be able to remedy the effects of the discrimination through another wrongful termination attorney.

Public Policy Exception To At-Will Employment

IN GREELEY V. MIAMI VALLEY MAINT. CONTRACTORS, 49 OHIO ST. 3D 228 (OHIO 1990), THE OHIO SUPREME COURT HELD THAT "[P]UBLIC POLICY WARRANTS AN EXCEPTION TO THE EMPLOYMENT-AT-WILL DOCTRINE WHEN AN EMPLOYEE IS DISCHARGED OR DISCIPLINED FOR A REASON WHICH IS PROHIBITED BY STATUTE."  AS A RESULT, AN EMPLOYEE DISCHARGED IN VIOLATION OF R.C. § 3113.213(D), WHICH PROHIBITS AN EMPLOYER FROM DISCHARGING OR DISCIPLINING AN EMPLOYEE BASED ON A WAGE WITHHOLDING ORDER BUT DOES NOT EXPRESSLY AUTHORIZE AN EMPLOYEE SUIT, WAS ALLOWED TO PURSUE A TORT CLAIM AS A RESULT OF HIS TERMINATION.  THE COURT HELD THAT THE LEGISLATURE COULD NOT HAVE INTENDED TO LEAVE AN EMPLOYEE DISCHARGED IN VIOLATION OF SUCH A STATUTE WITHOUT AN EFFECTIVE REMEDY.

THE GREELEY STANDARD

 

 

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   1. That clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element).
   
   
    

 

 

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   1. That dismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy (the jeopardy element).
   
   
    

 

 

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   1. The plaintiff's dismissal was motivated by conduct related to the public policy (the causation element).
   
   
    

 

 

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   1. The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).
   
   
    

 
Painter v. Graley, 70 Ohio St. 3d 377 (Ohio 1994), fn. 8.

THE JEOPARDY ELEMENT AS A RESTRICTION ON GREELEY

In a 4-3 plurality opinion the Ohio Supreme Court in 2002 significantly restricted Greeley claims by holding that a clear public policy was jeopardized if:

the absence of a cognizable Greeley claim based solely on a violation of the FMLA would seriously compromise the Act's statutory objectives by deterring eligible employees from exercising their substantive leave rights.”
 

Wiles v. Medina Auto Parts, (2002) 96 Ohio St. 3d 240, 242-246.

Under this test, the availability of some remedy under the FMLA, although incomplete, (e.g., no compensatory or punitive damages are available for a violation), barred a Greeley claim.

This was a major retreat from the expansion of Greeley claims. Earlier, the Ohio Supreme Court had held that Greeley's claims are cumulative and that the remedy available in the source of the public policy did not preempt the Greeley claim.  Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St. 3d 134, syllabus 2 and 4; Pytlinski v. Brocar Prods., 94 Ohio St. 3d 77, 79-80 (Ohio, 2002).

Similarly, in Collins v. Rizkana, (1995) 73 Ohio St. 3d 65, the Ohio Supreme Court allowed a Greeley claim based on, among other public policy sources, ORC Chapter 4112, even though the employer had fewer than four employees and was not covered by Chapter 4112.  The Collins court held that “the availability of remedies under R.C. Chapter 4112 will not serve to defeat Collins's sexual harassment tort claim . . . .” See also Livingston v. Hillside Rehab. Hosp. (1997), 79 Ohio St.3d 249 (age discrimination)

Under Wiles, however, a Greeley claim is available only if the remedy related to the source of the public policy is so deficient that the employee is deterred from pursuing it.

4112 PUBLIC POLICY CLAIMS

In Leininger v. Pioneer Nat'l Latex, 115 Ohio St. 3d 311 (Ohio 2007), the Ohio Supreme Court held that:

A common-law tort claim for wrongful discharge based on Ohio’s public policy against age discrimination does not exist, because the remedies in R.C. Chapter 4112 provide complete relief for a statutory claim for age discrimination.

After discussing Wiles, Kulch, and precedent, the Leininger Court stated:

After considering our prior decisions, we conclude that it is unnecessary to recognize a common-law claim when 1) remedy provisions are an essential part of the statutes upon which the plaintiff depends for the public policy claim and 2) when those remedies adequately protect society’s interest by discouraging the wrongful conduct.

Greeley's claims are thus not supportable solely by the public policy found in ORC Chapter 4112.

4123.90 WORKERS COMP PUBLIC POLICY CLAIMS

In Bickers v. W. & S. Life Ins. Co., 116 Ohio St. 3d 351 (Ohio 2007), the Ohio Supreme Court walked almost completely away from the public policy claim for workers compensation claimants that it had created four years earlier in Coolidge v. Riverdale Local School Dist., 100 Ohio St.3d 141, 2003 Ohio 5357, 797 N.E.2d 61.  Bickers held:

An employee who is terminated from employment while receiving workers' compensation can contact an unlawful termination attorney because has no common-law cause of action for wrongful discharge in violation of the public policy underlying R.C. 4123.90, which provides the exclusive remedy for employees claiming termination in violation of rights conferred by the Workers' Compensation Act.

 

 

What Is Constructive Discharge Doctrine

What Is Constructive Discharge Doctrine

Blog Article

A constructive discharge describes an employee's decision to resign because the employer made the terms and conditions of employment so miserable that reasonable people would resign. Under those circumstances, the law treats the resignation as though it were an actual or "constructive" discharge.

 

The constructive discharge doctrine exists because employees who voluntarily quit their jobs generally cannot pursue claims for unlawful discharge or recover unemployment compensation benefits. Employment law typically asks whether the reason for an employee’s discharge was prohibited.  If the employee was not discharged but instead quit, then there was no unlawful discharge. Similarly, unemployment compensation provides benefits for individuals who lose their jobs through no fault of their own. Therefore, a voluntary resignation will typically disqualify an employee from receiving unemployment compensation benefits.

Constructive Discharge and Voluntary Resignations

A “constructive discharge” describes employees who in fact quit but did so under circumstances where the terms and conditions of their s employment were so difficult or unpleasant that a reasonable person in their shoes would have felt compelled to quit.  To prove a constructive discharge, most courts require proof that:

 

1.  
   1.  
      
      
      1. the terms and conditions of employment were so difficult or unpleasant that a reasonable person would have felt compelled to quit;
      
      
      2. the employer made the conditions difficult or unpleasant; and
      
      
      3. the possibility of the employee quitting was a foreseeable result of the difficult or unpleasant conditions.
      
      
       
   
   
    

 

Some courts also require proof that the employer intended for the employee to quit.

As a result of the constructive discharge doctrine, an employer cannot avoid liability for an unlawful termination by making employees so miserable they will quit.  Similarly, an employer cannot decide to terminate an employee and escape responsibility by persuading the employee to "resign" to avoid the stigma of being fired. Swink v. Greater Cleveland RTA, 2009-Ohio-6105 (8th App. Dist.).

Constructive Discharge is not a Claim

Importantly, a constructive discharge is not a claim by itself.  It merely changes a resignation into a discharge for employment law purposes.  Whether or not the constructive discharge is lawful still depends on the employer’s motivation for forcing the employee to quit.

For example, an employee who quits getting away from the sexually hostile environment created by her supervisor has a claim for the emotional damage caused by the hostile environment during her employment.  However, since she resigned, she must prove the additional element of constructive discharge to recover her lost wages and benefits from the loss of the job.  If she proves sexual harassment but cannot prove circumstances so unpleasant or difficult that they amount to a constructive discharge, she will not be able to recover damages for the loss of employment.

The concept of a constructive discharge runs throughout employment law and appears wherever an employee may have a claim arising out of a loss of employment. This includes unemployment compensation proceedings, where the constructive discharge concept may be referred to as "just cause” to quit.

 

 

An employment lawyer can help us to know more about constructive discharge.

California Wrongful Discharge Law

California law does not recognize a “wrongful termination” or "wrongful discharge" claim, at least by that name.  California is an at-will state, which means that an employer may fire, demote, hire, promote and discipline employees for any reason, or no reason at all unless it is an unlawful reason.

However, certain terminations are "wrongful" in the sense that they violate the California employees' rights. This means that the employee has a claim to file in court to seek a remedy for the harm done by the wrongful discharge.  Wrongful, or unlawful reasons for discharge of a California employee include discrimination based on race, gender, disability, or other protected class status, discriminatory harassment, illegal retaliation, and termination for missing work as a result of a family and medical leave absence.

Ten types of California Wrongful Discharges
Discrimination

Terminations due to race, age, sex, pregnancy, national origin, marital status, color, religion, or disability are illegal in California.  Employees are protected from this type of termination if their employer has 15 or more employees (and in some counties, 5 or more employees).

Discrimination victims must show that they were treated differently than those of a different race, sex, religion, national origin, age, or other protected status, under the same circumstances.

Retaliation for Reporting or Opposing discrimination

Victims of sexual harassment, discriminatory discharge or discipline, or other forms of unlawful harassment may oppose it and complain about it to their employer. Once they do, their employer cannot fire them or take other adverse action against them in retaliation.

Whistleblowing

Employees who work for employers with 10 or more employees can object to or refuse to participate in discrimination, harassment, or illegal activity. If their employer discriminates against or discharges employees for engaging in such activity, the employee may be a protected whistleblower.

Worker’s compensation retaliation.

An employer may not terminate an employee for you for making such a claim. California Workers' Compensation Act Section 440.205 states that "[n]o employer shall discharge, threaten to discharge, intimidate, or coerce any employee because of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law."

FMLA Leave

An employer covered by the FMLA may not terminate an eligible employee for taking leave due to sickness, disability, or serious health condition of an employee or a family member:  Employees are eligible if they worked at least 12 months (which can be non-consecutive) and 1,250 hours in the last 12 months and the employer has 50 or more employees at the employee's worksite.

Claiming unpaid overtime or wages

An employer cannot terminate an employee who objects to not being paid wages or overtime.

Court testimony

An employer may not terminate an employee for testifying against the employer or in any court case where the employee is subpoenaed.

Pregnancy

Pregnancy discrimination is a form of sex discrimination. An employer cannot terminate an employee who is pregnant or because the employer fears that the employee will not return to work or work as hard following the pregnancy.

Breach of contract

If an employment agreement is for a specific term or period of time or permits the employer to terminate the employment only for just cause, an employee can sue for breach of contract and lost wages if the employer terminates the employment before the agreement allows. In that case, the employer may be liable to the employee for the balance of the employee's salary and other compensation.

For more info contact a wrongful termination lawyer.

WHAT IS DISCRIMINATION AT WORKPLACE

The Civil Rights Act of 1964 prohibits discrimination in employment based on race, color, national origin, religion, and sex. The Age Discrimination in Employment Act (1967) extended the prohibition against discrimination to age. In the years since, many states and the federal government barred discrimination based on disability, pregnancy, citizenship, genetic information, and status as a veteran. The characteristic protected by anti-discrimination law, like sex, age, race, and veterans' status, is known as “protected classifications.” People who share those characteristics are in a “protected class.”

Two Types of Discrimination - Disparate Impact and Disparate Treatment

Laws prohibit discriminatory "treatment," where an employer treats employees in a protected class worse than those who are not, and discriminatory "impact," where an employer does not intend to discriminate but uses an otherwise neutral decision-making process that has a discriminatory effect. Examples include a height requirement or skills test that disproportionately screens out members of a protected class, like females, Asians, or Hispanics. Griggs v. Duke Power Co., 401 U.S. 424 (1971).

Disparate impact discrimination cases are comparatively rare.  Cases involving discriminatory treatment are far more common. Most of MEL's discussion of discrimination involves discriminatory treatment.

Unlawful Discrimination - the Exception to the Rule

Surprisingly, most forms of employment discrimination are completely lawful. Employers can lawfully prefer a younger applicant with a degree from a prestigious university over an older one from a local state college if education is what matters. In that case, the employer has a discriminatory motive in favor of better education, but the motive is rational and legitimate. Even if irrational, employment decisions are not unlawful unless they are motivated by an employee's protected class. An employer could, for example, refuse to hire a 50 year old female Asian born under the sign of Aquarius, because she is an Aquarian. Although irrational, no law prohibits discrimination based on astrological signs. As long as the employer's decision was not motivated by the employee's age, gender or race, it was lawful.

Proving Unlawful Motivation

Proving unlawful motivation is not easy. Motive is invisible. We cannot touch or feel what someone thinks. Plus, most discriminators either fail to recognize their discriminatory motive or are clever enough to conceal it. Consequently, "there will seldom be 'eyewitness' testimony as to the employer's mental processes." United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, (1983). But when there is it is known as "direct evidence" of discrimination.

Direct Evidence of Discrimination

Direct evidence of discrimination is "that evidence which, if believed, requires the conclusion that unlawful discrimination" motivated the employer's actions. Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cor. 1999).  Decision-maker statements that qualify as direct evidence include:

 

 

 

 

 

 

 

• disparaging remarks about people in the protected class in general ("you can't teach an old salesman how to market with social media")
• disparaging remarks that relate an individual's protected characteristic, especially as it relates to work ("Tiffany misses too much work because her son is disabled")
• remarks reflecting stereotypical views of people in a protected class ("Gretta is so bipolar. I never know what she will do next.")
• slurs and demeaning jokes based on the protected characteristic ("I would ask you how old you are but I know you forgot how to count that high”)
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​Circumstantial Evidence

More commonly, a discrimination claimant has only circumstantial evidence that implies unlawful bias. Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cor. 1997) (setting forth how a plaintiff may prove unlawful discrimination under the ADEA). Circumstantial evidence is proof that does not on its face establish discriminatory animus but lets a fact-finder draw a reasonable inference that discrimination occurred. Kline, 128 F.3d at 348. Circumstantial evidence of bias can include:

 

 

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    • treatment so unusual, egregious, unjust, or severe as to suggest discrimination,
    
    
     
  
  
   

 

 

 

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    • an employer’s history of showing bias toward younger employees,
    
    
     
  
  
   

 

 

 

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    • statistically significant differences in the numbers of females and males hired or fired,
    
    
     
  
  
   

 

 

 

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    • adverse treatment of workers in the protected classification, but not workers outside of it, and vice versa
    
    
     
  
  
   

 

 

 

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    • charges or complaints of similar discriminatory treatment by other members of the protected class,
    
    
     
  
  
   

 

 

 

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    • violation of company policy about protected workers, without justification, and
    
    
     
  
  
   

 

 

 

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    • false reasons for adverse treatment given by the employer as a cover-up of the real reason.
    
    
     
  
  
   

 

A common thread running through circumstantial evidence is the treatment of "comparators," or comparably situated other employees outside of the protected class. If an employer treats comparators the same as employees within the protected class, the employer has proof that it did not discriminate against the protected class and vice versa. Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 521-22 (6th Cor. 2008).

Pretext Evidence of Discrimination

In cases in which employees lack direct, statistical, or even comparator evidence of discrimination, an unexplainable or false reason for an adverse employment action can tilt the burden of proof in the victim's favor. This happens as a result of the "burden-shifting" process that the U.S. Supreme Court adopted to compensate for the fact that direct evidence of intentional discrimination is hard to come by. The burden-shifting process forces the employer to explain its reasons for the adverse action, and allows the employee to attack the employer's stated reason as pretextual. If the employee proves that the employer stated a false reason as a cover-up of the real reason, the jury can infer that the real reason is unlawful discrimination.

Proving that the employer's stated reasons are false permits an inference of unlawful discrimination because employers know better than anyone else the real reason for their actions. If employers lie and give a false reason, the jury can conclude that the reason the employer lied was to cover up an unlawful reason.

Damages in Discrimination Cases

An employee who proves unlawful discrimination is entitled to be placed in the position he or she would have been absent from the discrimination. This can include lost wages, past and future, lost benefits, compensation for emotional pain and suffering, and, in some cases, an award of attorneys' fees.

For more info please contact a discrimination attorney.

Family And Care Giver Discrimination, Harassment And Discharge

Family responsibility discrimination is an emerging area of discrimination law. Although no specific law designates a family caregiver as a protected class, several laws protect people with family responsibilities from discrimination, discharge, harassment, and retaliation.

Laws protecting Family CareGivers

Sex discrimination and sexual stereotyping

An employer will violate Title VII and Florida Chapter 760 sex discrimination laws by assuming that a woman because she is a woman:

 

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    • will be the primary family caregiver;
    
    
     
  
  
   


 

 

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    • will not devote enough time to her job because of caregiving demands;
    
    
     
  
  
   


 

 

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    • is or will become pregnant;
    
    
     
  
  
   


 

 

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    • will not return to work after pregnancy; or
    
    
     
  
  
   


 

 

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    • will not commit to a long-term career.
    
    
     
  
  
   


 

 

Similarly, an employer who assumes that a man granted primary custody of children will be too distracted to do his job engages in "sexual stereotyping." Discharges, discrimination, or harassment based on sexual stereotypes is unlawful sex discrimination. Retaliating against an employee who opposes sexual stereotyping is unlawful as well.

FMLA Intermittent Leave

Employees who work at a site covered by the FMLA who are eligible for FMLA leave can take intermittent leave to care for themselves or their immediate family members. The absences covered by the FMLA include the need to:

 

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    • care for a family member with a serious health condition;
    
    
     
  
  
   


 

 

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    • the birth or adoption of a child;
    
    
     
  
  
   


 

 

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    • one's own serious health condition, if it prevents the ability to perform the job;
    
    
     
  
  
   


 

 

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    • assist a military servicemember with military exigencies or injuries.
    
    
     
  
  
   


 

 

FMLA leave may be taken intermittently and on an as-needed basis. Employers are entitled to additional medical certification that the serious health condition makes intermittent, rather than continuous, leave necessary.

Pregnancy Discrimination

Pregnancy discrimination is a form of sex discrimination. As such, an employer cannot discharge or otherwise discriminate against an employee:

 

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    • because she is pregnant,
    
    
     
  
  
   


 

 

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    • because of assumptions about her pregnancy or her parenting choices; or
    
    
     
  
  
   


 

 

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    • because of childbirth.
    
    
     
  
  
   


 

 

A pregnant employee is generally not entitled to an accommodation or light duty, even if the employee's physician recommends the accommodation or light duty. If an employer offers similar accommodations or light duty to non-pregnant employees, however, they cannot treat pregnant employees differently by denying the pregnant employee light duty.  In addition, insurance must cover pregnancy, and benefits for leaves must be the same as for non-pregnancy leaves.

Continuous FMLA leave

Employees can use family and medical leave continuously, in addition to using the intermittent FMLA leave discussed above. Employees can use continuous FMLA leave for pregnancy-related complications that are "serious health conditions," to care for family members and for other family-related needs covered by the FMLA, as long as the employees are otherwise eligible for FMLA and working for FMLA covered employers.

FMLA allows employees to be away from work for up to 12 weeks without losing their job. At the end of the employees' leaves of 12 weeks or less, their employers must restore them to their prior position, or one substantially equivalent to it.

Marital status discrimination

Florida law protects employees from discrimination based on their marital status. An employer thus cannot favor married employees over unmarried employees.  Fl.St. 760.10. This law does not, however, prohibit nepotism, which is discrimination in favor of family members, unless the family favoritism falls along gender lines (that is, male family members are treated better than female family members).

Laws Against Harassment

Harassment based on:

 

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    • stereotypical views of caregivers,
    
    
     
  
  
   


 

 

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    • pregnancy,
    
    
     
  
  
   


 

 

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    • employees who take FMLA leave or
    
    
     
  
  
   


 

 

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    • caregiving status categories
    
    
     
  
  
   


 

 

is also illegal. In most cases involving co-worker harassment, and some cases involving supervisory harassment that does not include a loss of wages or benefits, an employee must report the harassment to the employer to allow the employer an opportunity to stop it

Family and Caregiving Conclusion

No specific law prohibits discrimination against employees who have family caregiving responsibilities. Laws prohibiting sex discrimination can protect employees from some forms of stereotyping. Pregnancy discrimination is a form of sex discrimination. Consequently, pregnancy discrimination is unlawful as well.

The right to be away from work without losing a job comes from the Family and Medical Leave Act, but only for covered employers and eligible employees. Finally, in California, employees cannot be discharged, harassed, or demoted because they are either married or unmarried.

For more info contact a pregnancy discrimination lawyer.