Reporting sexual harassment in the gig economy

Employers, gig or otherwise, can be sued for economic, non-economic, or punitive damages in the millions of dollars.
Employers, gig or otherwise, can be sued for economic, non-economic, or punitive damages in the millions of dollars. 

This week’s question comes from K, who asks:

Q:“I am female and I work at events that are staffed by Instawork, Wonolo and other gig agencies. We get gigs through these companies to work at various events. One of these events was being catered by a very famous gourmet company [name withheld]. The catering companies contact Instawork and Wonolo to send workers to provide bartender and waitstaff. Some of the gig workers provided by these companies are sexually harassing myself and other female workers by pawing into us. They usually walk up behind me and put their hands on the flat of my back, or down lower towards my butt. One grabbed my arm from behind. Some give you a pat on the back right where your bra is fastened. Sometimes, they brush against me in ways that are unwanted and inappropriate. This is happening not only to me, it is also happening to other women. It is sexually suggestive and doesn’t happen to the men.
I have reported this to the catering company. They say it is not their problem and that I need to contact Instawork. I have tried to make an anonymous complaint to Instawork but couldn’t get through without giving my name. I am afraid if I tell them they won’t send me to gigs anymore.
There is no clear reporting mechanism, a lack of sufficient training on harassment and discrimination, and little or no supervision by the companies who send you the jobs or the companies where you work. I have been putting up with this for years, and I am fed up. Can you write in your column what the law is so I can send it to the companies?”

A: Dear K, the emergence of the gig economy has led to an upswing of complaints such as yours. These companies believe that they owe their “gig labor force” none of the protections which cover full-time employees. Sometimes this is the result of ignorance, sometimes it is the result of the gig employers just not giving a damn about their labor force.

Sexual harassment can include verbal statements, comments, jokes, written comments, emails, “dick pics,” touching, inappropriate physical presence (sitting on a desk with crotch inches from the face, blocking freedom of movement, etc.) and other unwanted conduct. The key is that the conduct is unwanted and has its basis in sexual connotation or abuse of power.

Under California Government Code Section 12940(a) conduct arises to the level of sexual harassment “when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being.” It suffices to prove that a reasonable person subjected to the discriminatory conduct would find that the harassment altered working conditions so much as to make it more difficult to do the job.

Section (b) of 12940 states that even a single incident of severe harassing conduct is enough to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment. “The existence of a hostile work environment depends upon the totality of the circumstances . . . and the legal standard for sexual harassment should not vary by type of workplace.” 12940(c)&(d).

Pursuant to Section (j)(1), “harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employer . . . shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”

A person “providing services pursuant to a contract” means a person who meets all of the following criteria: (A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance. (B) The person is customarily engaged in an independently established business. (C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer’s work.

Employers, gig or otherwise, can be sued for economic, non-economic, or punitive damages in the millions of dollars. It is also illegal to retaliate against anyone making a complaint. Our firm has recovered hundreds of millions in discrimination, harassment and retaliation cases.

Send both the “gig” employer and the catering company a copy of this letter and hopefully they will take appropriate action. Make a paper trial so you can prove it was delivered. If they continue to ignore your rights, contact a good trial lawyer to take action on your behalf.

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Los Angeles Sexual Harassment Lawyer

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Los Angeles is a high-powered city full of ambitious people. Because of this fast-paced environment, sometimes individuals will take liberties they are not permitted to take – or it may appear that such acts are intentional when they are not. Either way, it can be frightening and enraging if sexual harassment happens to you. It is important, even critical, to understand that you do not have to experience it alone. You deserve better than to be mistreated, and a good sexual harassment lawyer in LA can help you seek justice.

Two Types

While most women and many men are aware that sexual harassment may occur anywhere, it is by far the most common in the workplace. There are two types of behavior documented by relevant authorities that qualify under the relevant laws as sexual harassment: quid pro quo and hostile work environment.

Quid pro quo sexual harassment is the classic offer of some advancement or assistance in return for sexual favors by one individual to another. Because this behavior is so exploitative, it is punished harshly when it is proven to be going on – unlike in many other states, California law makes an employer strictly liable for the sexual harassment of its employee, which means they cannot defend against it. Strict liability is defined as when liability is imposed on a person without requiring a finding of fault, meaning that one does not have to be proven to have abrogated that duty of care in order to be found liable.

Hostile work environment sexual harassment, by contrast, is when conduct by one or more people is so intimidating and unpleasant that it rises to the level of harassment, with a sexual edge to alleged teasing or physical interactions. The key words in the statute that can make an employer liable are “severe or pervasive” – or, not and, meaning that the burden of proof the plaintiff must meet to show harassment is lower than it might be in other states where “severe and pervasive” is the standard. Also, California law holds that the person filing the claim need not have been the specific target of the harassment in order to have a cause of action.

Gender Is Irrelevant To Harassment Claims

It is important to keep in mind that by law, gender is irrelevant in terms of feeling sexually harassed or making harassment claims. Multiple California institutions from the entertainment industry to the state capitol have been touched by sexual harassment claims in recent years, and given the widespread nature of the claims and social phenomena like the #MeToo movement, more and more men are coming forward, both under California and federal law.

Historically men were somewhat discouraged from filing harassment claims, fearing being perceived as weak or incompetent. However, more and more men are filing in this day and age, against both male and female harassers. The Equal Employment Opportunity Commission (EEOC) in particular has documented an increase in male plaintiffs in sexual harassment cases since 2010, with between 16 and 18 percent of sexual harassment claims being filed by men, up from single digits in the early 2000s.

California Law or Federal Law?

Despite the noted uptick in harassment claims being filed with the EEOC, filing in California is a better bet for many plaintiffs, and understanding which statute to file under can be an important part of moving forward with your case. There are different standards at play under each law. For example, Title VII of the federal Civil Rights Act of 1964 has been interpreted to hold that in order to hold an employer liable for hostile work environment sexual harassment when the employer has not taken any detrimental employment action (in other words, in order to hold your boss liable for sexual harassment even if you have not been disciplined or demoted for your report), (1) the employer must not have taken any reasonable steps to curb harassing behavior or prevent it in the first place; and (2) the employee must have “unreasonably” failed to work with the employer to prevent the behavior.

California law, by comparison, does not demand any action on the employee’s part to work with the employer regarding the behavior before filing suit. In some ways this can help the employee, because a person who has been harassed may sometimes not take steps to discuss the behavior with their employer due to fear of retaliation or disbelief. They may decide at first to ignore the behavior, only to change their mind later, and under federal law, they would conceivably be denied in court because they did not immediately speak up. California law does not have this requirement.

Training Is Required

One variation in California’s law that the average employee should keep in mind is that the Department of Fair Employment & Housing (DFEH) requires employers with at least 50 full or part time employees and/or independent contractors must provide at least two hours of sexual harassment training to all supervisory employees every two years. The training must be fairly comprehensive, covering both federal and state law, and include at least some discussion on how to handle claims, both true and false. If an employer does not offer this training, they may be cited, and while it is not probative, it is a persuasive showing if one is trying to establish a workplace culture as being uninterested or disengaged from sexual harassment issues.

Don’t Delay – Call Our Los Angeles Sexual Harassment Lawyers Today

Sexual harassment has become a hotly debated topic in this age of the #MeToo movement, but it cannot be debated that being harassed on the job is something no worker should ever have to endure. Our Los Angeles sexual harassment lawyers have been recognized for their work for other clients, both in terms of excellence and in terms of compassion, which is what victims of such treatment so often need. We have 15 attorneys in our firm, each of whom understands that justice and closure are paramount in what you need.

You can schedule a free case review with us by calling our offices today at 415-360-1766 or by using our web form. We work on a contingency basis, meaning that if you do not succeed in your suit, you owe no fees. Contact us today.

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Sexual Harassment Against Women In Tech: Why & What Can Be Done To Stop It

Uber headquarters sexual harassment charged

Maria from San Francisco writes, “Chris, Susan Fowler’s account of her harassment at Uber seems far too typical of what women in tech experience. Why is it that so many women in tech are discriminated against? What should we do?”

Thank you Maria for your timely question.  For those not aware, on February 19, 2017, Susan Fowler alleged in a detailed and lengthy account on her personal blog that she had been discriminated against and sexually harassed by her direct supervisor when she worked as a software engineer at Uber.

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An overview of workplace sexual harassment in California

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A few spoken words, a touch or a glance may seem good-natured to some, but can make others feel uncomfortable in the workplace. However, state and federal laws offer workers certain protections, including defense against sexually forward behavior. Under California state law, employers must take certain steps, at minimum, to provide workplaces that are free of sexual harassment. Despite laws and programs aimed at preventing this type of behavior, some people are still harassed in the workplace. Having an understanding of what constitutes sexual harassment may help workers to know if an uncomfortable situation is actually a violation of their rights.

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New state laws expand workplace protections against sexual harassment

Ava G from The Haight asks: “I heard that there were some new laws on sexual harassment. As a member of a women’s empowerment group I was wondering if you could summarize them so we can discuss them at our next monthly meeting.”

Ava, the #MeToo movement started, and continues to run strong, in California. Over the next several weeks I will report on many of the new, progressive, laws extending important protections to California workers. As you have heard, the California Legislature and Governor Newsom have acted decisively in broadening California’s workplace protections in the areas of sexual harassment. As the owner of a law firm which has represented employees (only) in cases of harassment and discrimination over the last 25 years, I can say confidently that these new laws provide much needed additional protection for workers in California.

Former Gov. Jerry Brown signed two important measures into law on Sept. 30, 2018. Senate Bill 1300, propounded by Senator Jackson and codified as Government Code Section 12923, added a host of new employee protections. The law, with certain exceptions, prohibits an employer from conditioning continued employment, or incentives like raises or bonuses, on the execution of a release of a claim or right under the Fair Employment and Housing Act (FEHA), a nondisparagement agreement (an agreement that prevents the employee from disclosing truthful facts that may be negative), or other document that denies the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. The law further provides that any such agreement or document containing such a clause is unenforceable. In addition, SB 1300 extends the previous FEHA requirement that employers protect their employees from sexual harassment by non-employees to require protection from all forms of harassment on the basis of membership in a protected class, race, age, disability, sexual orientation, gender identification, etc.

SB 820, propounded by Senator Leyva and now codified in the California Civil Code Section 1001, renders unlawful any settlement agreement including a confidentiality provision that prevents the disclosure of factual information pertaining to civil or administrative complaints of sexual assault, sexual harassment, or workplace harassment or discrimination based on sex. The law provides that any such provision in a settlement agreement entered into on or after Jan. 1, 2019 is unenforceable. The law does permit a provision, however, that would safeguard, at the claimant’s request, the claimant’s identity and any facts that could lead one to discover the claimant’s identity (except in matters involving a government agency or public official), as well as a provision that prevents the disclosure of the amount paid to settle the claim, at the request of either party.

On Oct. 10, Gov. Newsom signed into law Assembly Bill 9, propounded by Assembly Member Reyes, which extends the time for an employee to file a complaint with the Department of Fair Employment and Housing, a prerequisite for the employee to file a lawsuit or, at the employee’s request, for the Department to conduct an investigation and prosecution of the claim within the administrative system. Until now, employees have been required to file a charge of discrimination or harassment (retaliation or other unlawful conduct) with the Department of Fair Employment and Housing within one year in order to preserve their right to sue their employer for unlawful harassment or discrimination. AB 9 amends Government Code section 12960 to extend the time that an employee has to file a complaint of discrimination and harassment by two years. Now aggrieved employees have up to three years to file a claim and initiate legal action. Moreover, certain additional extensions of time may be granted if the conduct is discovered after the expiration of the three-year period or the aggrieved party finds out the true identity of the unlawful actor.

Although these periods have been extended, it is always best to act promptly when dealing with these matters as documents disappear, memories “fade,” witnesses change jobs and frequently move, making the accumulation of evidence more difficult. It is also important to note that AB 9 is a prospective law, meaning that it does not revive claims which have already expired. As always, it is advisable to consult an experienced sexual harassment attorney to ensure the best outcomes in prosecuting your claims.

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California starts year with laws targeting sexual harassment

Around this time every year, I write a series of articles on California’s new laws: laws which were passed through the legislature and signed by the Governor Jerry Brown last year, but did not come in to effect until Jan. 1, 2019. This week, I will focus on a bevy of new sexual harassment laws which owe their origins, in part, to the #MeToo movement. In response to the recent exposure of rampant sexual harassment in politics, the entertainment industry, and business, California has continued to demonstrate an aggressive and progressive agenda with the passage of major legislation supported by several key individual rights organizations, including the Consumer Attorneys of California and the California Employment Lawyers Association.

The first of these bills, Senate Bill 1300, sponsored by state Sen. Hanne Beth Jackson from the 19th Senate District, amended the Fair Employment and Housing Act (FEHA), the state statute already providing anti-discrimination and harassment protections for employees in the workplace. FEHA continues to hold employers, labor organizations, employment agencies, apprenticeship training programs, and other training programs leading to employment responsible for harassment of an employee or contractor by a supervisor or agent of the employer based on any protected classification, including race, sex, age, religious affiliation, disability, sexual orientation, or gender identity or expression. FEHA also continues holds employers responsible for harassment of employees based on protected classifications by any non-supervisory employee if the employer, its agents, or supervisors knew or should have known of the misconduct and failed to take immediate and appropriate corrective action.

However, up until now, FEHA has held an employer responsible for only sexual harassment, but not other forms of unlawful harassment based on other protected classifications, of employees by non-employees, again in circumstances where the employer, its agents, or supervisors knew or should have known of the conduct and failed to take immediate and appropriate corrective action. SB 1300 now extends the scope of protection from non-employee misconduct to include not only sexual harassment, but any form of unlawful harassment, i.e. based on age, race, national origin, religious affiliation, disability, sexual orientation, or gender identity or expression. The amended law further expands the pool of workers protected against non-employee harassment to interns, volunteers and contractors. An employer who fails to put a stop to such harassment that it knew of or should have known about can be sued and held liable for both financial losses and other personal harms caused to the harassed, such as anxiety, fear, and humiliation.

SB 1300 has also cracked the code of secrecy: in every case I’ve settled, whether before or after trial, in my 25 years of employment law practice, the defendant employer has demanded a “confidentiality clause” to make it a “secret settlement,” often imposing significant financial penalties for any disclosure of terms. With SB 1300 in effect, it is now illegal to condition new employment, continued employment, raises or bonuses on an employee releasing of any claim or right under FEHA, including by signing a non-disparagement agreement or other document that would deny the employee their right to disclose information about unlawful acts in the workplace.

Next, SB 224, also sponsored by state Sen. Jackson, amends the California Civil Code to expand the reach of sexual harassment claims to cover non-employment relationships. These amendments allow a plaintiff to prove a cause of action for sexual harassment against a defendant who held themself out as being able to help the plaintiff establish a business, service, or professional relationship. The class of potential defendants under SB 224 include investors, elected officials, lobbyists, directors, and producers …. can you say Harvey Weinstein?

Finally, SB 1343, introduced by state Sen. Holly Mitchell, expands anti-harassment training requirements to cover both smaller businesses and non-supervisory employees. Previously, FEHA has required employers with 50 or more employees to provide at least two hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender to all supervisory employees within six months of their assumption of a supervisory position and then once every two years. Upon implementation of SB 134, all employers of five or more employees must now provide at least two hours of sexual harassment training to all supervisory employees, as well as at least one hour of sexual harassment training to all nonsupervisory employees, by Jan. 1, 2020 and then once every two years thereafter.

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Supervisor Keeps Asking For Date: Is That Sexual Harassment?

sexual harassment in the workplace

Janet from the East Bay writes:  “Chris, at my firm holiday party my supervisor and I drank too much.  We were playfully teasing each other when he suddenly he took my hand, told me how sexy I looked, and kissed me on the lips.  I was stunned and didn’t reciprocate.  I became very uncomfortable and left the party.

After the party my supervisor has texted me three times on my company cell phone during work hours asking me to go out after work.  I was disturbed by his texts and, following the first one, I texted back no.  I was hoping he would stop and I have not responded to the other two texts although he has asked me to ‘give him another chance.’  Other than texting me he has not said or tried to do anything suggestive.  I’m anxious though every time I’m in the same room with him and concerned about what may happen in the New Year.  What should I do?”

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Avoiding Discrimination and Harassment at Holiday Parties

Every year, my firm receives multiple phone calls from people who have been the victim of some form of harassment or discrimination at company-sponsored holiday parties. Once again, the holiday season is upon us and we hope that, if everyone thinks ahead, many of the potential pitfalls can be averted so that everyone can enjoy the parties.

End-of-year holiday parties have a particular potential for sexual, religious, and other forms of harassment because a number of unique factors are at play at these types of functions. First, holiday parties often take place at a location away from the worksite. This factor alone can lead to the relaxing of the behaviors people tend to understand as “workplace appropriate.” The fact that people are interacting in much more social environment than usual also adds to the tendency for people to stray from workplace norms, a tendency often exacerbated by the often accepted use of alcohol at these events. This combination can be recipe for bad things to happen.

It is important to remember that, in addition to any individual offending employees, employers can also be held liable (1) if they have failed to take steps to prevent discrimination and harassment, (2) if they know or should know about the conduct and fail to promptly and sufficiently put a stop to the conduct, or (3) if when the harassment is done by an owner, officer, director, manager or supervisor. In addition to continuing to follow all ordinary legal requirements to inform and train employees regarding their rights and responsibilities regarding improper discrimination and harassment, employers seeking to avoid liability for victims’ potential economic losses, emotional recovery, and even punitive damages should be especially mindful to ensure professional boundaries are maintained throughout holiday festivities.

The good news is that there are many steps employers can take to minimize the dangers of harassment. Invitations and announcements for work-sponsored holiday events, for example, can and should provide explicit guidance that all harassment and discrimination policies in place at work are applicable to holiday parties as well. Supervisors can remind staff that although co-workers will be interacting socially, they must treat each other with the respect they do in the workplace and set clear guidelines for what is expected. Archaic traditions, such as kissing under the mistletoe, that serve to legitimize and trivialize sexual harassment need to be left in the past.

If the employer is hosting the bar, a limitation on the number of drinks can keep people from overindulging. No good has ever come from a person overdrinking at a holiday party. Another crucial step to mitigate potential problems can be making sure, in advance, that everyone has a safe way to get home from holiday parties. This simple proactive gesture might save an employee from getting a DUI and, equally important, ensure that an intoxicated worker is not harrassed or coerced to accept a ride home from someone with ill intent.

Another area of concern at holiday parties can be religious discrimination and harassment. Not everyone celebrates Christmas. People of other faiths should not feel pressure to participate in a religious-based holiday, or to have to explain why they choose not to. Most religions have a mid-winter holiday, so holding ecumenical festivities can be a way of respecting all employees’ cultural traditions while celebrating the end of the year together.

Finally, if the employer hosts a gift exchange or “secret santa” game at the holiday party, a clear understanding of what types of gifts are acceptable is imperative. Sexualized gifts may seem funny to some, but can be offensive and traumatic to others given their particular history of sexual harassment or abuse. Non-sexual joke gifts, too, can cross the line into illegal harassment. Just last year, my office proudly represented an African-American woman who was singled out to receive a particular gift at the holiday party: a purse with a confederate flag containing pictures of the employer dressed as President Trump with a sign indicated the south would “rise again.” Employers should take responsibility for ensuring that all holiday gifts are given in good will and with the same respect and sensitivity expected in the workplace.

When employers make expectations clear and plan ahead for the well-being of all their employees, it allows everyone to safely celebrate winter festivities together and ring in a new year of successful employee relations. Each employee can also help. Make sure you have a plan to get safely home. Don’t encourage overindulgence in alcohol. Think about how the gift you are giving may be received. Act with dignity and respect toward your co-workers.

 

Enjoy the party. Hopefully, this year Dolan Law Firm will not receive one of those unfortunate calls.

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Gender Identity Harassment

From Lindsay in San Francisco: A coworker with whom I work closely recently began his social transition from presenting as the sex he was incorrectly assigned at birth to his true gender identity. Most of our colleagues have been respectful and encouraging during this process but there is one older woman who refuses to use my transitioning coworker’s correct name and pronouns and occasionally makes other demeaning remarks. The woman’s offensive comments are distracting and make me uncomfortable, but I’m really concerned that my transitioning coworker will feel so ostracized that he will end up quitting the job rather than deal with daily harassment. Should I share my observations with HR?

Lindsay, it is distressing to hear about your coworker’s alienating experiences at work as a result of his gender identity and expression. Fortunately, California’s employment discrimination laws protect employees against this kind of harassment and have been updated in the past two years to clarify and strengthen these protections.

Discrimination and harassment based on sex and gender is prohibited under the state’s Fair Employment and Housing Act (“FEHA”). Since 2011, FEHA has specifically included “gender identity” and “gender expression” as traits for which employees are protected from unlawful discrimination and harassment. Last year, the California Fair Employment and Housing Council promulgated detailed regulations to clarify how protections based on gender identity and expression should be applied. Finally, effective January 1, 2018, all employers are required to conspicuously post a state-approved “Transgender Rights in the Workplace” poster and employers with 50 or more employees must include units on gender identity, gender expression, and sexual orientation in mandatory sex discrimination trainings.

Under the 2017 regulations, gender identity is defined as a person’s “internal understanding of their gender,” including “male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth and transgender,” whether or not expressed in the employee’s external presentation. The regulations also specifically protect those in transition, perceived to be transitioning, or who have already transitioned, with “transitioning” defined as a process in which an individual begins living as the gender with which they identify, including changes in name usage, facility usage, participation in employer-sponsored activities, as well as any relevant medical procedures. Among its protections against discrimination, the regulations proscribe employers requiring gender documentation or imposing job duties, dress standards, or facility usage inconsistent with an employee’s gender identity or expression, except in very limited circumstances.

As discussed in previous columns, FEHA forbids workplace sexual harassment both in the form of “quid pro quo” offers or threats contingent on sexual favors and the much broader category of “hostile work environment” harassment. A hostile work environment may be created even in the absence of any specific adverse employment action when unwelcome conduct based on sex or gender either unreasonably interferes with an employee’s work performance or creates a workplace that would be intimidating, hostile, or offensive to a reasonable person in the employee’s shoes. A given conduct’s lawfulness is evaluated using all relevant circumstances and can be exacerbated by individual attributes such as a history of related abuse. Both the harasser and victim may be of any gender identity and the behavior need not motivated by sexual desire. Indeed, the complaining employee need not even be the intended target of the harassing conduct; a mere witness like yourself may have standing if they personally witness conduct such that their immediate work environment is permeated by sexual harassment.

As you can see, California law does prohibit the kind of harassment your transitioning coworker has been suffering if the colleague’s insults and misuse of former name and pronouns are pervasive enough to impact the workplace atmosphere or affect the complaining employee’s job performance. Generally, the “pervasive” standard requires that the harassment not be occasional, isolated, sporadic, or trivial and to either (1) have become part of the employee’s daily or weekly work routine, (2) undermine their ability to perform their job, or (3) cause them persistent distress. In your question, you indicate that you worry your coworker might quit his job to avoid the regular distress he experiences, a situation known as constructive discharge. He may indeed have a strong claim against the harasser and possibly your employer, if they have not undertaken all legally required duties to prevent harassment and promptly correct unlawful behavior of which they should reasonably be aware. A successful case will require the assistance of an experienced employment law attorney.

In the meantime, you should certainly encourage your HR department to look into the matter and reaffirm that your employer has duly updated its employee manual, workplace rights posters and, if the company employs 50 or more employees, mandated manager training curriculum in conformance with current California law.

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