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Professional Misconduct

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Professional Misconduct

You don’t need to put up with a hostile working environment

Today’s question comes from Geraldine T. in Berkeley:

“After reading your article on unlawful harassment two weeks ago, I have a couple of questions. I work in a warehouse and I don’t want to be a “narc,” but I don’t think I should have to put up with the offensive sexual type behavior going on here. One female worker and the male warehouse foreman have known each other for years and they say all sorts of sexual stuff to each other and laugh, all the time. For example, the foreman might say “where do you want me to stack these poles,” and the female worker might answer, “you know where you can put that pole baby, anytime, just don’t let your girl find out.” I don’t need, or want, to hear this crap at work. I am fairly religious and it makes me so uncomfortable that some days I don’t even want to go to work. Whenever I say anything like “I don’t need to hear that kind of talk,” they look at me with disgust and tell me to mind my own business. With Christmas coming, I need this job to buy gifts for my kids and pay the rent. What can I do?”

Geraldine, you shouldn’t have to choose between a workplace free of sexual harassment and your job. This happens all too often. The type of unlawful behavior you describe is known as “hostile environment” sexual harassment and can involve various forms of verbal and physical conduct of a sexual nature that have either the purpose or effect of creating a hostile or offensive working environment. The conduct need not be directed towards you — your awareness and objection is enough. As such, the foreman would be considered to be harassing you, but not his female friend because she participates in the conduct and therefore does not appear to find the conduct “unwanted.” 

A “hostile environment” case requires proof of three elements: (1) an employee subjected to unwanted conduct; (2) such conduct being based on sex; and (3) harassment “so severe or pervasive” as to “alter the conditions of the victim’s employment.” In cases like yours where there has been no direct impact on your work assignments or conditions, the law would require a “commensurately higher showing that the sexually harassing conduct was pervasive and destructive of the working environment”; that is, it has to be so bad that a reasonable person in your position would find it intolerable and detrimental to their working environment.

To hold an employer accountable, the employer must have had actual or constructive knowledge of the conduct and have failed to remedy it. Examples of actual knowledge include personal observation or another employee’s report. Constructive notice is found when the conduct is so prevalent that a reasonably aware employer would know about it. In cases like yours where a supervisor is involved in the conduct, the supervisor’s knowledge is imputed to the employer. 

I suggest that you look at your employee handbook to see if they have a process for reporting such conduct and follow that process. Don’t worry if it requires you to bring it up with your direct manager; you can skip that. I always suggest that a person in your situation file a WRITTEN complaint with their manager’s manager and human resources or, If there is no human resources department, then with the owner. Once in receipt of your complaint, the company is legally obligated to conduct a reasonable, good faith investigation and take “prompt and sufficient remedial measures” to put an end to the harassment. You may also file a complaint with the Department of Fair Employment and Housing at their website: dfeh.ca.gov.

Many people in your situation choose to make anonymous complaints because they are afraid of retaliation. However, there are good reasons not to complain anonymously, though. First, the law prohibits retaliation, including comments, altered job assignments, bogus discipline, or termination, against an employee who has made a good-faith complaint. Second, since your foreman and his friend already know your feelings towards their conduct, they will probably guess who reported them and possibly take actions against you, which the company can claim not to constitute retaliation because the complainant did not reveal their identity. As such, it is best to let them know up front.

Finally, I suggest that you speak to an Employment Trial Lawyer, who usually works on a contingency (taking a percentage of any recovery), for further advice. My firm believes in giving the employer an opportunity to “do the right thing” and avoid a lawsuit if possible, so our employment law team often counsels employees in effectively communicating with their employer to obtain a harassment-free workplace. If these efforts fail, the employer’s insufficient response can serve to strengthen a later lawsuit.

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Sexual Exploitation In The Heath Care System

This week’s question comes from Harriette in Marin: “I entered therapy about 5 years ago to deal with some issues involving sexual abuse as a minor. I had struggled with relationships and self esteem for years. I wanted to heal and move forward with my life to establish safe, healthy relationships. My therapist was a man who works with a large healthcare provider. He said it would be good for my process to work with a man, as that is where my trauma lay, abused by a relative who was a man. After a year my therapist and I became intimate.

First it was in the office during sessions, then it progressed to meetings outside including my home. He was married but said he would leave his wife. I thought this was good for me, I felt loved by a man who was stable. I became pregnant and am having his baby. My best friend pressured me for the name of the father.

I resisted. Then he stated that he could not be my therapist anymore and questioned my fidelity accusing me of sleeping with someone else. I was crushed. My baby will be born in two months. My friend says I need a lawyer. Am I at fault?  He didn’t rape me, I guess I consented, but I feel foolish and betrayed.”

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Can I Sue My Therapist for Professional Misconduct?

Woman at the psychotherapist

This weeks question comes from Sheila P. in San Francisco who asks, “Amy, my best girlfriend, just confided in me that she and her therapist had sex. She went to see this therapist because of sexual trauma she suffered as a child. She’s really freaked out and confused. On one hand she doesn’t want to get the therapist in trouble but on the other hand she feels like she’s being taken advantage of. I can see that it’s tearing her apart. Isn’t this illegal? What can be done about it?”

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How To File A Complaint Against An Attorney

Court Gavel and Scales of Justice

This week’s question comes from Hal in Berkeley, who asks: “I went to a personal injury lawyer because I was in an accident. My lawyer told me that he had opened a claim with the other side’s insurance carrier. I got medical treatment and when it was done he told me he made a demand for settlement. He then told me he had settled my case, but he never asked me if that amount was OK. Then he never gave me any of the money, saying that it all went to pay him and my medical bills. I asked him for my file and a breakdown of where the money went. Now he won’t answer my emails or calls. What are my rights?”

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Can I Sue The Seller Of My House And Our Broker For Not Disclosing Key Information?

House for Sale.jpg

This week’s question comes John K from South City who asks: “I recently bought my first home with my wife. We saw the ad for the house on line and went to an open house. We liked the house and asked the broker about the neighborhood because we wanted a safe, quiet, place to raise a family.

The broker said that it was a quiet neighborhood with older, retired neighbors. The agent acted as a “dual agent” which he said meant he could represent us both. We went through a lot of paperwork, got the loan, and then closed on the house.

After we moved in we started seeing a lot of traffic coming and going from next door. It turns out that they are selling drugs and may be running a meth lab. I spoke to the other neighbor next door and he said that this had been going on a long time and he had spoken with the broker about it. I feel ripped off, what can I do?”

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Protections in Place for Faulty Fumigation

This week’s question comes from Tara P. in Hayward, who writes: “The weirdest thing happened recently. I had just bought a house out of foreclosure. I was working on the interior while living there. I went away for the night to a friend’s house. When I came home the next day after work, there was a circus tent covering my house. Seriously, a circus tent. Not only that, there were signs saying “stay back, toxic gasses in use.”

My house had been fumigated while I was out! I didn’t ask for my house to be fumigated. I called the company and they said that it was my house that was supposed to be fumigated. I said no, and they read the address. They fumigated my house on an avenue when they were supposed to fumigate a house, with the same number, a couple blocks away on a court. They said that a real estate agent had paid for the fumigation. I am against the use of pesticides and chemicals. I told them to take the tent off my house but they said they couldn’t for three days until the chemicals dissipated.

Thank God I had dropped my kitten off at the vet’s for boarding. They said that they didn’t have signed paperwork as the job was phoned in by a Realtor they have worked for before. I had to go to a hotel until my house was untarped three days later. I had to buy some work clothes and a pair of shoes as my clothes were all sealed up inside the tent. Since then I have thrown away all of the food in my pantry, sent my clothes to the cleaners and I am having a green company come in and do a top to bottom cleaning. I told the fumigators that I wanted to be compensated for this inconvenience and expense, they said that they were going to give me the fumigation for free. This is not acceptable. What rights do I have?”

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Is It Legal For Therapists To Have Sex With Patients In California?

This week’s question comes from Jenny V. in Berkeley who asks, “My best girlfriend just confided in me that she and her therapist had sex. She went to see this therapist because of sexual trauma she suffered as a child. She’s really freaked out and confused. On one hand she doesn’t want to get the therapist in trouble but on the other hand she feels like she’s being taken advantage of. I can see that it’s tearing her apart. Isn’t this illegal? What can be done about it?”

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