Bay Area / San Francisco Harassment and Discrimination Attorneys
Employees often call attorneys about various unfair and offensive conduct connected to the way they were treated at work, and are shocked to learn that the law does not obligate employers to behave in a smart, civilized or even fair manner. The confusion comes from the widespread use of legal jargon such as “harassment” and “discrimination”, but only a hazy understanding of what type of employer conduct is actually prohibited by state, federal and municipal laws.
Unfortunately, not every type of abusive or offensive conduct is prohibited by law, and employees typically cannot sue when they are being treated badly based on some unprotected characteristic. An employer is prohibited from discriminating or harassing an employee based on the following protected characteristics:
- Ethnic Origin
- Sexual Orientation
- Age (over 40)
- Being Overweight (San Francisco)
The “protected characteristics” are quite narrow and when a well performing employee is fired, denied a promotion, treated poorly, or disliked, for no reason or because of an unprotected characteristic, there is no legal remedy. An employer may simply treat an employee unfairly or badly for no reason whatsoever or for a variety of legally permitted reasons such as not being a family member, wearing an ugly ties, not having attended a local university, or being too young.
However, sometimes the employer gives an innocent non-discriminatory reason for an adverse employment action, when in reality the cause of termination is one or more protective characteristics. For example, an employer may claim that it terminated a pregnant woman because she was not performing well or had a bad personality, when this is just a pretext and in reality the employer terminated the pregnant woman because she would have missed time from work due to her pregnancy.
Therefore the first question that always needs to be asked in a harassment or discrimination case is what is the real reason why the employee was terminated? The Zurada Law Firm can help clients sort through the facts to determine whether or not the termination was based on one or more protected characteristics.
Harassment of an employee occurs when a co-worker or manager says or does something that is unwelcome, offensive or belittling. However, as explained above, harassment by itself is not enough – it must be based on a protected characteristic. An employer can harass because they generally dislike an employee who happens to be Asian, but are prohibited from harassing an employee because they dislike working or associating with Asians. Harassment can have many forms but usually it means creating an uncomfortable or hostile work environment for the employee through verbal abuse directed at the employee, comments to others about the employee, use of derogatory language or slurs, or offensive actions such as playing jokes on the employee or obstructing their work. Whether or not the conduct is sufficient to constitute a hostile environment depends on a number of factors which include the severity and frequency of the conduct, and the relationship between the harasser and the employee. Repeated back-and-forth ethnic jokes between two employees are unlikely to be harassment even if the jokes are disparaging and perpetuate stereotypes, whereas even an occasional racial slur by a manager may be enough to create a hostile environment.
Sexual harassment is a special type of workplace harassment and occurs when co-workers or manager create an uncomfortable environment for a person because of their sex. Sexual harassment includes inappropriate comments or jokes, pornographic pictures, sexual advances such as touching or leering, asking another employee out, and/or demands for dates or sex in exchange for job benefits. Whether or not the conduct is sufficient for sexual harassment is evaluated on a case-by-case basis and is a matter of degree. An occasional inappropriate joke or an isolated unwanted advance is probably not enough to be harassment, but if the conduct is frequent or bothersome enough, it may constitute sexual harassment. The application of sexual harassment is broad and therefore it can happen between people of the same gender or by women harassing men.
Oftentimes discrimination and harassment are linked together. The distinction is that whereas harassment creates a hostile work environment, discrimination means unequal treatment of the employee compared to others similarly situated employees. Discrimination requires unequal treatment such as passing an employee over for promotions or other job benefits, assigning them to harder and more time consuming tasks, refusing to accommodate or reasonable requests by the employee. However, this unequal treatment must also be based on protected characteristic of the employee.
Bay Area / San Francisco Harassment and Discrimination Lawyers
Proving harassment or discrimination is not easy. Employees are rarely called racist names anymore and most employers work hard to prevent harassment and discrimination in the workplace. Employers often offer various non-discriminatory reasons why an employee was uncomfortable or treated differently, and sometimes those reasons are legitimate and sometimes they are just an excuse to cover up unlawful conduct. Employees and employers should consult an employment attorney at the first sign of trouble to put themselves in as advantageous positions as possible in any future dispute.
The Zurada Law Firm has successfully represented employees and employers in sexual harassment and discrimination disputes. We also counsel employers about how to prevent such unlawful conduct from occurring.
We would be honored to be your Bay Area/San Francisco discrimination and harassment attorneys, and your first consultation with us is always FREE. We also take on meritorious discrimination and harassment cases on behalf of employees on a contingency basis, meaning that you do not have to pay us an hourly rate, and that we get paid only if you win.