New Era: The End of Forced Arbitration Agreements for Sexual Harassment and Assault Victims

Written By Christopher B. Dolan and Vanessa C. Deniston

This week’s question comes from Jessica R., who asks: I’ve been working at a big tech company in the South Bay for about three years now as a software developer. At the outset of my employment, I signed several documents contained in a hiring packet, one of which was an arbitration agreement. I didn’t understand what it was at the time. I just signed it because I thought that’s what I had to do to start work. After some research, I now realize I gave up my right to file a civil case, and any claim arising from my employment will be handled confidentially out of court. A few weeks ago, one of the newly hired managers began making inappropriate sexual remarks to me and one of my co-workers. The behavior has only gotten worse. HR doesn’t seem to take it seriously, either. I’m starting to regret ever having signed that arbitration agreement. Do I have any options, or am I going to be stuck with it? 

Hi Jessica,

Thank you for your question. We have some excellent news for you. Last month, on March 3, 2022, President Biden signed H.R. 4445 into law, ending forced arbitration of all claims of sexual assault and sexual harassment arising under federal and state law. The law is effective immediately nationwide. It applies to all past and future agreements, including arbitration agreements signed before the new law went into effect. 

The new law applies to any “dispute or claim that accrues on or after the date of the enactment of this Act.” Does a claim “arise” or “accrue” when the actionable conduct occurs or when a case is actually filed? It is unclear. Given the law is so new, its interpretation, thus far, has been limited. There is likely to be a wave of test cases over the next six months, however, seeking to further clarify the applicability of the new law to acts of sexual harassment and assault that occurred before March 3, 2022, and how cases involving sexual harassment and sexual assault occurring before, on, and after March 3, 2022, are to be treated. 

What does this mean for you and your circumstances?

  1. First, the arbitration agreement you signed when you were hired by the company three years ago appears to be covered under this new law.
  2. Second, the new law will likely apply to your claims as the sexual harassment your supervisor subjected you to appears recent – post-dating March 3, 2022 – and ongoing, which removes some doubt regarding the Act’s applicability to your claims.

Does this Act completely prohibit the arbitration of these types of claims?

No. Depending on the circumstances, an employee that previously signed an arbitration agreement may still wish to avail themselves of the arbitration process. The confidential nature of arbitration may appeal to some employees who don’t wish to have their names publicly associated with embarrassing or explicit sexual harassment or assault details.  This law places the power in the hands of the victim to choose which forum they prefer. Thus, should you decide to pursue legal action, you may, at your election, choose which forum you prefer, whether it be arbitration or civil court. If you choose to file sexual harassment claims in civil court against your employer and your supervisor, your employer is unlikely to be successful in compelling you to arbitration, despite your former agreement with them to do so.

Now, for the curveball. As the law is brand new in its application, it is less clear at present how cases will be handled that involve a mix of different claims, one or more of which involve sexual assault or harassment. Suppose for instance, you wish to bring a sexual harassment claim and claims for wage and hour violations. The law is silent on whether the wage and hour violations will be compelled to arbitration. Forcing a victim to pursue two related claims arising out of their employment in two separate forums is neither practical nor a cost-efficient option for them. Time will bear out how such cases will be handled. 

One final note for those of you out there that don’t fall squarely within the protections offered by new law. If you do end up in arbitration, there are some further protections for you as a Californian. On January 1, 2019, Senate Bill 820 known as the Stand Together Against Non-Disclosure (STAND) Act became law, prohibiting settlement agreements designed to silence employees from sharing factual information about their experiences of sexual harassment or sexual assault in the workplace. This law also applies to settlement agreements that contain a non-disparagement provision. Thus, despite the confidential forum of arbitration, if a settlement is reached prior to the hearing, your former employer cannot prevent you from discussing about what happened to you. Since 2019, the California legislature has taken it a step further. On January 1, 2022, Senate Bill 331 known as the Silenced No More Act was signed into law, expanding the prohibition to all claims of harassment, discrimination and retaliation under the Fair Employment and Housing Act (FEHA), including claims based on race, sexual orientation, disability, and many others. 

If you or someone you know has signed an arbitration agreement and experienced harassment, discrimination, or retaliation in the workplace based on their membership in a protected class under FEHA, contact an attorney such as the Dolan Law Firm to analyze your particular circumstances. 

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Be Smart and Stay Aware, Even When Impaired

Written By Christopher Dolan and Vanessa Deniston

This week’s question comes from Emily from the Bay Area:Recently, I took a rideshare home from a holiday party I attended in the city. During the party, I had several drinks and by the time I was ready to leave, I was not in a state to drive myself. I called a rideshare vehicle to take me home. During the ride, the driver asked me several personal questions that made me feel uncomfortable, specifically what kind of guys I was attracted to and if I had roommates or lived alone. When I first approached the car, the driver even encouraged me to sit in the front seat next to him, which I found odd.  Luckily, I was not so drunk that I could not perceived these red flags. I ended up calling my friend who kept me company on the phone all the way home. Hypothetically, had the driver pulled over and tried to attack me, what legal recourse would I have and against whom?

We are so glad you arrived home safely, Emily. We hear this type of story frequently. It’s much more common than you would think. Rideshare services, like Uber and Lyft, can offer drunk partygoers a safer alternative to getting behind the wheel intoxicated, but all riders should still exercise caution, especially women riding alone. While most rideshare companies subject their drivers to criminal background checks, the system isn’t fail-proof as evidenced by the over 4,000 reported incidences of sexual assault to Lyft between 2017-2019 and nearly 6,000 reported to Uber within a similar timeframe. 

The great majority of rideshare assault cases in California involve intoxicated female passengers riding alone with a male driver. Indeed, in such a circumstance the likelihood of an assault greatly increases. An intoxicated female passenger will not be as alert as she otherwise might be if she is sober, missing red flags. She is more likely to engage in seemingly friendly banter with the driver and divulge personal details she may not otherwise volunteer. She is also unlikely to have awareness of where she is and may not notice if the driver has deviated from the designated route to her ultimate destination. If the driver makes advances on her, she is unable to give consent and may have an impaired memory regarding what occurred and when. She is also likely to struggle with providing an accurate description of her perpetrator. It is important that all women and solo passengers traveling in a rideshare vehicle be aware of common troubling signs. 

To address your question directly, Emily, if you are assaulted by a rideshare driver, you are likely to have claims both against the driver and the rideshare company the driver contracts with. In some isolated incidences, you may also have a claim against third parties, if that third party requested the ride on your behalf and you are an intoxicated minor.  If you are assaulted during a ridesharing ride, or you believe you may have been assaulted, it should be reported immediately to both the police and the rideshare company. Take immediate action to preserve any receipts for your ride and take screenshots of any information within the app that may identify the date and time of the ride, the identity of the driver, the driver’s license plate number, and the route taken by the driver to your final destination. This information will significantly narrow down the pool of perpetrators and allow the police and the rideshare company to identify him more easily. Preserve all clothing you were wearing on the date of the assault and visit the ER to have a rape kit evaluation performed. 

To the extent possible, avoiding such circumstances entirely is the key objective. There are several steps you can take to thwart or seriously deter opportunistic predators in such circumstances and you utilized some of them.  Above all else, trust your instincts. If the behavior of the driver feels suspect or off to you, do not get in the car. Simply call another ride.  If the driver exhibits concerning behaviors during the ride, cease further engagement with the driver and involve a third party. Call a friend to keep you company on the phone during the ride home or text someone you have regular contact with, reporting your whereabouts, when you should be home and the behaviors you perceive to be troubling. If the driver offers you food or drink after exhibiting troubling behaviors, politely decline.  Many rideshare apps have integrated a section within their apps where you can report safety concerns. Understand, this is not, nor should it be, a substitute for calling 911. If the driver inadvertently cancels the ride and pulls over in an unfamiliar area, call the police immediately. 

If you believe you may have been the victim of an assault, report it to the police immediately and contact an attorney to advise you of your rights. Your action may well prevent further assaults from occurring if the perpetrator is identified and suspended from the rideshare platform.

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End of Year Holiday Parties Have a Unique Potential for Harassment

Written By Christopher B. Dolan and Emile Davis

This week’s question comes from Matthew H. from San Francisco: My workplace is hosting a Holiday party and they are telling us to keep it work related and professional, if we decide to attend. I don’t plan on getting crazy, but can they tell us how to act outside of our work schedule? It seems a bit much.

Dear Matthew,

Each year, the Dolan Law Firm receives multiple phone calls from people who have been the victim of harassment or discrimination at company sponsored holiday parties. The Holiday season is, once again, upon us, if everyone thinks ahead, many of the potential pitfalls can be averted and everyone can enjoy the party.

End of year Holiday parties have a unique potential for sexual harassment. Several factors combine to make sexual harassment a particular danger at these types of functions. 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 can also add to the tendency for people to stray from workplace norms. This is often exacerbated by the often-accepted use of alcohol at these events. This combination can be recipe for bad things to happen.

The good news is that employers can take steps to minimize the dangers of harassment. One thing an employer can do is include a copy of the workplace discrimination and harassment policies within any email or invitation, or a simple reminder that the policies in place at the worksite are applicable to the holiday party as well. Reminders that, although co-workers will be interacting socially, they must treat each other with the respect they have for one another in the workplace, can set clear guidelines for what is appropriate behavior. Archaic traditions that attempt to legitimize and trivialize harassment, such as kissing under the mistletoe, 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 over-drinking at a holiday party.

Making sure, prior to the event, that everyone has a safe way to get home is also a big help. It can save an employee from getting a DUI. And, importantly, it can ensure that an intoxicated worker is not coerced to accept a ride home from somebody who makes them uncomfortable or who has ill intent.  

If the employer participates in 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. Joke gifts can be fun and funny, but can also cross the line into scary intentional harassment. For example, Dolan Law Firm proudly represented an African-American woman who was singled out to receive a particular gift at a holiday party- she was purposely presented a purse embroidered like a confederate flag which contained pictures of the owner of the company dressed as Donald Trump in front of a sign indicating that the south would rise again. 

Another area of concern at holiday parties is religious discrimination and harassment. Not everyone celebrates Christmas. People of other faiths should not feel pressure to be involved in a religious based holiday, or to explain why they are not. We can all celebrate the end of the year, and most religions have some sort of a mid-winter holiday or day of remembrance. 

When employers make the expectations clear and plans for the well-being of all the employees, it allows everyone to enjoy the Holiday party. 

Each employee can also help. Everyone should have a pre-planned manner to travel home safely. 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 does not receive one of those calls.

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Workers with Long COVID May Be Entitled to ADA and FEHA Job Protections

Written by Christopher B. Dolan and Mari Bandoma Callado

Sandra F. from Castro Valley writes: I work at a grocery store and contracted COVID-19 in July.  I have since tested negative and have been told by my medical provider that I am outside the contagious window for spreading the virus. Unfortunately, some of my symptoms have not gone away, and have been told that I have “Long COVID”. I still have fatigue, shortness of breath, lightheadedness or dizziness when I stand, headaches, loss of taste and smell, and brain fog. My job requires me to stand and walk a lot but I am having a hard time doing that for long periods of time before feeling overly tired, having shortness of breath, or getting dizzy. I am worried that I will fall or hurt myself. I would like to ask my employer for accommodation but I am not sure how. Will I get in trouble for asking for a chair or a different position while I am recovering? 

Thank you Sandra for reaching out. We are sorry to hear that you are still experiencing COVID-19 symptoms. As you mentioned, for some people, the symptoms from contracting COVID-19 do not go away and some studies indicate that 10% of COVID-19 patients may become long haulers. 

Is Long COVID Classified as a Disability Under the ADA or FEHA?

The Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) are laws that protect California workers from disability discrimination in the workplace. The ADA has classified Long COVID as a disability “if the person’s condition or any of its symptoms is a ‘physical or mental’ impairment that ‘substantially limits’ one or more major life activities.”

 Under the FEHA, Long COVID is also classified as a disability but the FEHA requires only that a mental and physical disability “limit” a major life activity (not a substantial limit, but a limit).

In other words, having Long COVID does not automatically mean that a person has a “disability” under the ADA or the FEHA. Unfortunately, there is no bright-line test for determining whether someone is disabled for purposes of the ADA or the FEHA. It is necessary to make an individualized assessment to determine whether someone’s Long COVID condition or any of their symptoms (substantially) limits a major life activity. Major life activities include but are not limited to caring for oneself, eating, performing manual tasks, walking, standing, communicating and working. You described your symptoms as something that limits your ability to work, walking and standing. It is likely that you would be considered as a person with a disability under the ADA or the FEHA, entitling you to reasonable accommodations.

What are Reasonable Accommodations? 

Both the FEHA and the ADA require most California employers to give employees with disabilities “reasonable accommodations”. Employers who are covered by the ADA or the FEHA are required to provide reasonable accommodations unless the accommodation would be too difficult for your employer to provide, or doing so would endanger the health and safety of others, or change your job in a significant way.

An accommodation is reasonable when changes are made so that the employee with a disability can perform the essential functions of the job. This can be changing job duties or work schedules, providing leave for medical care, device, or technology. Essentially, these are changes that would allow employees to do their job safely and well.

How to Request Reasonable Accommodations:

The first thing you should do is to inform your employer that you have Long COVID in writing.
Note: your employer may request medical records directly related to disability and need for accommodation to determine whether you are a person with a disability.

Once you inform your employer, they must not discriminate against you and begin engaging in a good-faith interactive process to explore potential reasonable accommodations to help you perform your job effectively and safely.  

Your employer can provide many different reasonable accommodations. It is very important that you maintain communications with your employer so you can explore together the accommodations that are right for you and your job. For example, you could get access to a chair so you can sit down when you feel dizzy while performing your job or you could be temporarily reassigned to a different position or be given different tasks that would allow you to sit down more frequently. You could also request a leave of absence under the Family and Medical Leave Act or the California Family Rights Act, which would entitle you to up to twelve weeks of unpaid job-protected leave. 

Retaliation is Prohibited:

Retaliation is anything that changes the terms and conditions of your employment. Examples of retaliatory conduct include but are not limited to the following:

  • Increased harassment or verbal abuse for opposing unlawful conduct;
  • Changing schedules to an undesirable shift;
  • Assigning undesirable job duties;
  • Demotion or denial of promotion;
  • Relocation to an undesirable location;
  • Reduction in hours or pay;
  • Change in compensation plans or programs;
  • Denial of training or opportunity for advancement; 
  • Discipline such as warnings, suspension or probation for trumped-up charges; and
  • Termination.

An employer must not retaliate against an employee for requesting accommodations. As such, you should not “get in trouble” for requesting accommodations for your medical condition.

If you feel that you have been discriminated against because of your disability and/or medical condition, or retaliated against for standing up for your rights and/or requesting accommodations, contact the employment attorneys at the Dolan Law Firm.

***

The COVID-19 (Coronavirus) outbreak is an ongoing, rapidly developing situation and the local, state, and federal responses are changing regularly.  The Dolan Law Firm takes efforts to keep the information on this page updated, however, to guarantee up to date information it is necessary to confirm with publicly-available federal, state and local health organization guidance and government mandates.

 

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Rice v. City of Roy Update: Additional $793,000 in Attorneys’ Fees

On September 23, 2021, a Federal Jury, In Tacoma, Washington, unanimously found that City of Roy Police Officer, Christopher Johnson, violated the Fourth Amendment rights of David Rice and Seth Donahue, when he shot them as they were traveling, unarmed, in their UTV on the BNR rail tracks inside the City of Roy.

Now, the city of Roy has withdrawn its attempt to appeal and agreed to pay an additional $793,000 in attorneys fee’s and costs. Total payout will now be $4,050,000.

Congratulations to Chris Dolan, Jeremy Jessup and their legal teams for an amazing victory!

Read the full story via Seattle Times:

 

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Medical Injury Compensation Reform Act and Medical Malpractice Cases

Written By Christopher Dolan and Casey Hultin

This week’s question comes from Pam from San Mateo:

A good friend of mine’s child recently passed away.  My friend believes that a doctor’s error caused her child’s death. Do you have any advice? How can the doctor be held accountable?

Dear Pam,

I am so sorry to hear your friend is going through this. What you are describing is called medical negligence or medical malpractice. Medical error is far too common and hundreds of thousands of Americans die each year as a result. Unfortunately, in the state of California, the options for recovery for the errors of medical providers and the ability to hold them accountable is extremely limited because of the Medical Injury Compensation Reform Act of 1975, otherwise known as “MICRA”.

MICRA was signed into law in 1975 and limits compensation for what are called “non-economic” damages, including things like pain and suffering and wrongful death damages for the loss of a loved one such as a parent, child, or spouse, or other impacts on quality of life such as the loss of a limb or cognitive function. MICRA limited the maximum recovery for non-economic damages for preventable medical negligence at no more than $250,000. This amount has not changed since 1975. With inflation, the $250,000 cap now would equate to approximately $50,000 in 1975. Roughly speaking, had this cap kept up with inflation, the cap would now be approximately $1.2 million.

Medical malpractice cases are long and difficult and often require the retention of expert witnesses. Costs to successfully hold a medical services provider accountable for negligence can exceed $100,000. While there are ways to potentially recover these costs through a jury trial, doing so is time consuming, stressful, and not a guarantee. As a result, there are not many lawyers that take on these cases, nor is this often something that people potentially want to pursue because of the small amount of net recovery once litigation costs and attorney fees are paid. Many plaintiffs go through multiple years of stressful, invasive litigation in medical malpractice cases. Medical malpractice cases are more costly than other personal injury cases such as automobile accidents, because defense attorneys and the insurance companies paying for them will take as many steps as possible to whittle down the already smaller pot for recovery. Jurors who decide these cases are not informed of the cap, and only find out after the verdict that the plaintiff’s recovery is limited to $250,000.

While your friend is thinking through whether to pursue a medical malpractice case, it is important to remember that there is a one-year statute of limitations on medical malpractice claims in California. The clock begins running when the plaintiff knew or had reason to know of the medical malpractice. This determination is case specific and not always easy to determine. If you are ever considering bringing a medical malpractice case, it is important to have your case evaluated as soon as possible. Evaluation of your case by a medical malpractice attorney also often involves an initial review of all available medical records by a doctor or other expert, so gathering all the medical records from the treatment at issue as expeditiously as possible will also help.

Economic damages are still recoverable under MICRA. Unfortunately, for the death of a child or someone who is not employed, economic damages will be relatively minimal, essentially limited to funeral expenses. When the injured person survives and has ongoing medical expenses related to the doctor’s error, the injured person can also recover for those medical expenses, with some limitations.

Another important thing to note about MICRA is that MICRA does not just limit what most people think of as medical malpractice, it also impacts recovery against other health care providers such as massage therapists.

California voters will have the opportunity to change the law in the November 2022 election when the Fairness for Injured Patients Act is on the ballot. The Fairness for Injured Patients Act will adjust for inflation the maximum $250,000 compensation cap set on quality of life and wrongful death survivor damages to approximately $1.2 million. It will also allow judges and jurors to decide that compensation above the cap is appropriate in the cases of catastrophic injury or death. Jurors will also be informed of the cap. Additionally, the Fairness for Injured Patients Act will adjust the limitations on economic damages recovery for medical malpractice cases so that insurance companies cannot shift the costs back onto parties that are not at fault.

Additionally, the Fairness for Injured Patients Act will extend the time to bring a claim for medical malpractice to two years instead of one year, which is more in line with the time to bring a claim for other personal injury causes of action.

I am again so sorry for your friend’s loss. They are lucky to have a friend like you supporting them in their time of need.

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Rice v. City of Roy: A Police Shooting Incident Case

A federal jury rules unanimously in favor of Chris Dolan’s clients and finds excessive use of force used by police officer Chris Johnson. A verdict of $3, 257,000.00 was awarded to plaintiffs, in Federal Court, Tacoma Washington, and against Chris Johnson and the city of Roy on September 23, 2021. This case arises from a police officer involved shooting just south of the Roy Washington city limits in February of 2019.

FOR IMMEDIATE RELEASE

UNANIMOUS JURY HOLD ROY WASHINGTON POLICE OFFICER LIABLE FOR EXCESSIVE FORCE IN POLICE SHOOTING CASE

On September 23, 2021, a Federal Jury, In Tacoma, Washington, unanimously found that City of Roy Police Officer, Christopher Johnson, violated the Fourth Amendment rights of David Rice and Seth Donahue, when he shot them as they were traveling, unarmed, in their UTV on the BNR rail tracks inside the City of Roy, a rural city of less than 1,000 inhabitants covering .49 square miles. Roy has a police force of 2, one being the defendant, Christopher Johnson. The total verdict was $3,257,000.00.

FACTS:

February 9th, 2019, was a snowy day in Roy, located in Pierce County, Washington, about 60 miles outside of Seattle. Rice and his nephew, Donahue, had been out in their RZR UTV enjoying the 10-12 inches of snow traveling along trails, rail tracks and “tearing it up” through the city streets in Roy.  Admittedly, they had been drinking beer (ten and 13 beers respectively over 6 hours) that afternoon and evening. Officer Johnson alleged that Rice, driving the UTV, committed various traffic infractions and that he tried to pull the UTV over in town claiming that he activated his lights and siren, and that Rice and Donahue took off on the railroad tracks to evade him. Rice and Donahue stated they were unaware of Johnson’s pursuit, and it was shown that the rail tracks are a commonly used UTV trails. Home surveillance video, located nearby, peripherally caught the shooting on tape.  Dolan argued that “Johnson’s ego, being bruised, let him to turn off his lights and siren and race ahead to try and cut-off Rice and Donahue on the tracks at 295th St.  As Johnson approached perpendicular to the tracks, he turned off all the lights on his car “going dark” as the UTV approached.  Johnson then quickly drove the police vehicle towards the tracks, turned on only his spotlight, shined it down the tracks towards Rice, and ran from his police car, weapon drawn, towards the UTV.  Jonson admitted that he placed himself on the tracks, directly into the path of the approaching UTV and when the UTV didn’t stop, fired two shots into the front windshield and then two more into the passenger window as the UTV went by “fearing for his life.”  Johnson was hit by the UTV before firing.  Rice and Donahue testified that they were blinded by the spotlight, did not associate it with a police officer, and did not see Johnson until he shot them. Rice was struck on the right shoulder, with the bullet traveling into his chest, and also in the groin where the bullet passed through and exited his left leg. Donahue was shot in the right hand.   Dolan used accident constructionists, police procedures and ballistics experts as well as the Chief of the Roy Police Department (the other half of the 2 sworn officers) and Johnson himself, to show that he violated Roy’s Use of Force and Police Pursuit Policies and engaged in an excessive use of force.  Dolan and Jessup also prevailed on a Monelll Claim demonstrating the Chief and Mayor of Roy ratified Johnson’s conduct by failing to engage in an officer involved shooting inquiry and engaging in a disciplinary review of Johnson’s conduct and maintaining him on the force.

Dolan said “finally the tide is turning against police abuse. And justice under the 4th Amendment is being secured for those victimized by abuses of police powers. There is not an increase of police abuse, there is an increase in civil prosecution of these cases largely fueled and supported by modern day evidence generated by cell phones and private surveillance cameras.”

David Rice stated “I thank the jurors for their time and honesty and their courage to hold the police accountable. Their decision vindicates me and my nephew: we were out just having fun in the snow, we didn’t threaten anyone, hurt anyone, and were just about home when he ambushes us and shot us.  I’m a hunter and you couldn’t even shoot a deer this way without it being a crime.  The City of Roy has lied about what happened to the press through their press releases. The Jury saw through those lies.  The City of Roy needs to act to remove Johnson and he should be criminally prosecuted for his excessive use of force and abuse of power.”

Seth Donahue stated “I have been afraid of the Roy Police since the day this happened. They painted us out to be criminals when it was Officer Johnson who broke the law. We are good people who were having fun on a snowy night on rural roads, we didn’t know Johnson was supposedly chasing us and he came out of nowhere and opened fire. They need to take him off the street and take his gun and badge. Before he kills someone else.”

Further information may be obtained by contacting Chris Dolan at 415-279-2604 or Local Counsel, Doug Cloud at 253-921-1505

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You too, Us too: The Strength in Numbers

Written By Christopher B. Dolan and Vanessa C. Deniston

This week’s question comes from Fatima in the Bay Area:

I am a woman of color working at a big tech company in the Bay Area. I have been stuck in the same position for nearly seven years, while several of my white, male co-workers and even subordinates have been given opportunities for advancement. I’m worried my supervisor doesn’t consider me a serious candidate for a promotion, despite my excellent performance reviews. When there is a menial task to get done, it always seems to be assigned to me. At company events, my supervisor introduces me by first name only to corporate representatives, though he introduces the male members of my team using their full names. In meetings, I am frequently interrupted by male team members when I am trying to share feedback or ideas. I am hesitant to approach HR about this. I feel I will be told I have no proof and I am just imagining things. I’ve heard rumors that women in other departments have had similar experiences, but I’m not sure who they are and I’m too worried about my job security to go asking questions. Do I have any options here? 

Thank you for your question, Fatima. Let me assure you that you are not alone in your experiences. What you have described, a mixture gender and potentially race-based discrimination and microaggressions, is being experienced on a grand scale throughout the tech industry by women. Men continue to outnumber women at every level and women are promoted at a lower rate than men, making up only about 38% of managers. While many companies couch themselves as “progressive” and profess to have inclusive diversity platforms, the disparities in the workplace between men and women and, disproportionately, women of color, persist.  

Most recently, a group of both current and former Apple employees dissatisfied with the internal responses to their complaints of harassment, discrimination and retaliation have banded together and called for a collective exchange of stories and experiences in the workplace, spurring the #AppleToo hashtag on social media. The group’s website urges its coworkers at every level to collectively call for systemic change in the workplace, stating that,

“when our stories are collected and presented together, they help expose persistent patterns of racism, sexism, inequity, discrimination, intimidation, suppression, coercion, abuse, unfair punishment, and unchecked privilege.” 

In circumstances such as yours, Fatima, there are several actions you can take to both protect yourself and connect with other women and/or persons of color with similar experiences. First, it is essential to document any incidences or circumstances you feel could be related to gender or race discrimination, including discussions with your boss regarding your interest in advancement opportunities and his response, instances of microaggressions and/or evidence of disparate treatment in the workplace. If possible, your written record should be created contemporaneously with the incidences they document and be marked with a date and time stamp. Contemporaneous records, especially those bearing a date and time stamp, are afforded more credibility than ones created after the employee suffers a termination or a disciplinary meeting. Your description should include the date, time, setting, potential witnesses involved and what was said. Be a meticulous historian and leave emotion out of it, if possible. Always assume an outsider, with no knowledge of you, your character, or your performance record, may someday be reading and evaluating your account of what occurred. While you can certainly share how the experience made you feel, resist the urge to vent. 

The second step you can take is keeping your eye out for allies and sharing your experiences with them in a safe environment outside the workplace. It may feel intimidating to ask other women or persons of color if they, too, feel discriminated against or marginalized in the workplace. Therefore, it is often easier to share your own experiences with them first. If they have faced something similar, they are more likely to feel comfortable volunteering it on their own terms than they would if you questioned them about it directly. If they do end up sharing similar experiences, approaching human resources together can be a powerful approach. It is easier to dismiss one employee’s experience as an outlier, than it is to dismiss two or three similar ones, especially where the reporting structure is shared. 

Nonetheless, if you find you are your only reliable witness, go to HR and report your concerns, preferably in writing. Do not operate under the assumption your concerns will be dismissed. Even if they are, it is unlawful for your company to retaliate against you for voicing your complaints about suspected gender and/or race discrimination. Your company has a vested interest in responding to discrimination claims appropriately, as a failure to investigate, only increases their liability. As always, documenting all communications you have with your supervisor and HR is an important tool to keep track of what has occurred and protect yourself should retaliation occur after filing an informal or formal complaint.

If you feel you are being harassed, discriminated against, or retaliated against because of your race or gender, contact an attorney that specializes in employment law. Making real, transformative change in the struggle against institutionalized implicit bias and overt bias, takes courage and numbers. The good news is the tech industry does not lack either.

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Nursing Home Nightmare: Sexual Abuse in Care Facilities

Written By Christopher Dolan and Cristina Garcia

This week’s question comes from David K. in San Francisco:

My older sister, Lucy, is forty-one years old and suffers from physical and mental impairments. She uses a wheelchair and has trouble communicating. A couple of years ago, my parents and I made the tough decision to place her in a nursing home, as my parents could no longer care for her. We researched the facility, and it appeared to be a well-equipped facility for my sister’s needs. I would visit my sister on the weekends. I observed a male resident who seemed friendly and often engaged in conversation with Lucy during my visits. At the time, I thought it was nice for Lucy to have a friend in the facility. However, this all changed during one of my visits when I found this male resident in her room. They were by themselves, and he was lying in bed with her, which I found completely inappropriate. I immediately asked him to leave. I then spoke to one of the nurses and notified her of the incident. She apologized and assured me it wouldn’t happen again. Lucy’s nurse also stated that this male resident had exhibited inappropriate sexual behavior to other female residents. When I heard this, I was utterly disgusted. I have seen news stories about health providers who have sexually or physically abused residents. However, I am not sure what to do in this situation as the person abusing Lucy was another resident. Can the facility be held accountable for the other resident’s behavior, as they previously knew about his sexual tendencies?

David, it is terrible that you and your family had to go through this experience. As you mentioned, many news stories discuss physical or sexual abuse by health providers. However, it is the nursing home’s responsibility to ensure the safety of all residents, not only from health providers but also from other residents. 

Under the Elder and Dependent Adult Civil Protection Act (“EADACPA”), codified as Welfare and Institutions Code Section 15600 et sec. A “Dependent Adult” is defined as “any person between the ages of 18 and 64 who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or who physical or mental abilities have diminished because of age.” Cal. Welf. & Inst. Code § 15610.23(a). The law further defines “dependent adult” to include any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility. Cal. Welf. & Inst. Code § 15610.23(b). 

Based on the information you have provided, it appears that Lucy is a dependent adult who relied on the nursing home staff to protect her from harm. Under Cal. Welf. & Inst. Code Section 15610.57, “Neglect” includes the “failure to protect from health and safety hazards.”

Furthermore, “Abuse” is defined as “the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.”  The nursing facility was negligent in the care of Lucy because they failed to protect her from health and safety hazards. Despite having knowledge that the male resident had sexual tendencies, the facility did not properly monitor the resident and allowed him to continue interacting with female residents without supervision. In addition, the facility’s conduct would fall under “abuse” as defined by the EADACPA because a reasonable person in a like position would not allow the male resident to interact with Lucy without supervision and should not have allowed them to be alone in her room. Once the facility became aware of the sexual tendencies of the male resident, they should have taken precautionary measures, including monitoring his behavior and whereabouts to ensure he was not left alone with other residents he could harm.

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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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