Law Office of Arkady Itkin
Law Office of Arkady Itkin -  San Francisco Injury / Wrongful Termination Lawyer   Contact Us at (415) 295-4730
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How To Complain About Workplace Harassment The Right Way

8/3/2017

 

How to Win a He Said She Said Harassment Case At Your Deposition

8/12/2015

 

Top Mistakes Employers Make When Conducting Workplace Investigations

1/4/2015

 
workplace harassment investigations
California employers have an obligation to conduct proper workplace investigation of harassment or discrimination allegations by an employee and taking all reasonable steps to remedy and prevent future harassment. As the court recently reiterated in Nazir v United Airlines, a poorly conducted, biased investigation can intself be evidence of discriminatory motive against the alleged victim of discrimination or harassment. While every situation has its own unique aspects that call for an investigation process tailored to that situation, there are three common mistake that employers make when conducting a workplace investigation that may cast doubt not only on how reliable the conclusions are, but also on whether the investigation was conducted in good faith, and whether the employer really intended to get to the bottom of the incident/s in question.  

1. Failing to interview both the accused and his witnesses as well the accuser and his witness.
Interviewing only one side or neglecting to interview potentially critical witnesses for one of the sides will make the investigation look particularly unfair and biased. It is the employer's duty to interview and gather information from all the available sources on both sides, before making any conclusion or taking action against an employee.    

2. Delaying the investigation
While there is no bright line rule on how long it should take for the employer to start and complete the investigation, the sooner you start the better. This is especially true in cases where the employer is a large and well-funded company with resources specifically allocated for ensuring workplace safety. Waiting for weeks to initiate investigation may be unacceptable, especially if the alleged conduct is egrigious enough, such as sexual harassment, or violence / threats of violence at workplace. 

3. Having the investigation conducted by a manager who is biased 

To be fair, the investigation has to be conducted in an unbiased manner. If the investigation is run by the manager who dislikes or favors the accused or the victim for personal reasons, that investigation is likely to be skewed and lead to unfair conclusions.  An employer should consider having an investigation conducted by an impartial investigator or an attorney in order to make sure that the results of the investigation are actually useful. 

Employees can use one of the above issues in workplace investigations in proving their discrimination or retaliation. For instance, consider a situation where an employee applies for FMLA or disability leave. Shortly after making that request, a complaint of harassment is submitted against him, and he is terminated without any investigation or after a very shallow and incomplete investigation takes place. The employee can later argue that along with timing of his termination relative to the medical leave request, the fact that the employer didn't bother to verify the accusations before terminating him further evidences that the real reason for termination is medical leave discrimination and not the harassment complaint. 

Discrimination, Retaliation, and Harassment against Caltrans

2/27/2011

23 Comments

 
Recently, one employee of Caltrans contacted me in what seemed to be an urgent need for help and legal representation, as she was subjected to egregious harassment by her supervisor, and could not get any help from the higher management or human resources department. Her supervisor openly and repeatedly disregarded her disability limitations in t he most humiliating manner.    

The same Caltrans employee kindly shared with me a rather disturbing article about the discrimination and harassment that's taking place in the Caltrans Oakland office. Unfortunately, this kind of treatment of employees in large public offices is not as uncommon as one might think. One reasons for this seems to be the impunity which some of the managers enjoy for such violations. The perpetrators of discrimination and their superiors are rarely terminated and usually get a slap on the wrist in the form of a confident reprimand letter or a warning, while costing the city, county or state department many thousands of dollars in legal fees and in settlement. 
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When You Are Harassed, Discriminated or Retaliated Against at Workplace

1/23/2010

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You have a job that you value and enjoy, and it seems that you get along with everyone at the company except those few "bad apples" - your manager who harasses or retaliates against you and his superiors who are either reluctant to take action because they are biased and side with your manager no matter what, or because they want to "play it safe" by sweeping your reported problems under the rug.   

If you are not ready to quit and you believe that the situation can be remedied, it is very important that you don't become a victim of your anger. You should not allow yourself to lose your cool, to act or talk in a rude or offensive manner to your superiors, whether they are guilty of unlawful misconduct or not and not give them legitimate, legal reason to suspend or terminate you. This is the time to act like a true diplomat  - to voice your concerns in a compelling but courteous manner to all those who have the authority to address your issues without yelling at anyone or threatening your employer with a lawsuit.

As tempted as you might be to give your boss a piece of your mind - anger never serves any employee's best interests before litigation or after the lawsuit is filed, when treating the situation like business rather than personal battle is even more important for successful prosecution of a case in court.
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One of the Most Common Reasons for Lawsuits against Employers in California

10/26/2008

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As I meet more aggrieved employees, I notice a clear, repeating pattern - and employee works and performs well, enjoying working with his professional team and in his work environment, having a good relationship with his supervisor. At one point, his supervisors leaves or is being transferred to another department, and a new manager is being appointed to supervise the same employee. The new manager might be coming from outside, might not be experienced or even worse - might be having his first management position, upon receiving which he or she is eager to exercise his new power and control (what we commonly call as "power trip.")

Your new supervisor might have very different expectations from the previous one, which can be legitimate as every professional has different idea of what and how the performance of his or her subordinates should be. But when the new person abuses his power, nit-picking an employee, who has been working for the same company for much longer, this will necessarily cause undue stress and confrontation between the employee and his new manager.  This eventually leads to a range of legal claims by an employee - from harassment and hostile work environment, to retaliation (if the employee complains about his supervisor to the higher up, and as a result gets disciplined or terminated).

How can such problems at workplace and potential liability be effectively prevented and avoided?

One effective way to prevent this problem is to have the new manager undergo training and not only on discrimination, harassment and other laws that cover California workplace, but also generally on employee relations and on what makes a great manager who receives respect and admiration from his employees and who increases productivity, as opposed to one who creates bitterness, frustration and unnecessary stress on his employees. 

In addition, it is important to consider supervising closely the new manager and his ways of handling and communicating with his employees  - at least in the beginning stages of that new supervisor's job.

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California Employer's Duty to Investigate Discrimination and Harassment Complaints

7/10/2008

1 Comment

 

Under California law, an employer is required to promptly and thoroughly investigate any claim of harassment, discrimination, or retaliation. The obligation to investigate arises out of the affirmative duty under the Fair Employment and Housing Act, Cal. Gov. Code section 12940(j) and (k) to take all reasonable steps necessary to prevent discrimination and harassment from occurring. The duty to investigate a harassment claim promptly and throughly exists whether or not the claimant consents to an investigation or cooperates with one. Further, neither an employee’s failure to report harassment nor the fact that the harassment stopped before the investigation began conclusively absolve an employer from liability for discrimination and harassment. Moreover, it is not enough for an employer to conduct an investigation without also taking measure to protect the employee from retaliation.

Employer’s failure to investigate an employee’s complaint adequately may violate California anti-discrimination laws. To be adequate, the investigations should be commenced immediately, and be completed as soon as circumstances reasonably allow. Investigations commenced within a day or days of a complaint and completed within a two-week period have been routinely upheld as timely. Waiting until after the complainant has filed an administrative charge with DFEH or EEOC will be presumed inadequate.

While the complaint is undergoing investigation, the employer should take steps to prevent contact between the complaining employee and the alleged harasser, such as rescheduling or placing the alleged harasser on leave.

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A non-sexual conduct at workplace can still constitute hostile work environment sexual harassment

7/8/2008

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It is commonly known that sexual harassment at workplace involves unwelcome acts of sexual nature by a co-workers or a supervisor, such as unwelcome touching, repeated unwanted propositioning, conditioning employment or promotion on sexual favors, etc.

Offensive conduct, however, need not be sexual in nature to create a hostile work environment in the workplace. Hostile non-sexual conduct (or language) directed at an employee because of his or her gender may create an actionable hostile environment. A pervasive pattern of abuse violates Title VII even if not motivated by sexual desire to drive women out of the organization. Rude overbearing, loud, vulgar and generally unpleasant comments by a male supervisor toward female subordinates, coupled with physically aggressive (though non-sexual) actions, may constitute sexual harassment if male subordinates were treated with proper respect. Interestingly enough, the fact that there were more women than men in the office does not make a difference.

A non-sexual conduct that singles out an employee based on gender may also be actionable and constitute sexual harassment/hostile work environment. In one California case, a hostile work environment was shown by evidence that male police officers engaged in overtly hostile acts toward female police officer, including stuffing her shotgun barrel with paper so that the weapon would explode if fired, spreading untrue rumors about her abilities, singling her out for unfavorable work assignments and shifts, making false complaints about her performance, and even threatening to disrupt her wedding.

Even staring, coupled with other factors, can constitute sexual harassment hostile work environment. In one case, a female employee refused a male co-worker’s several requests for a date (which included divulges lewd fantasies about her). When she complained to her supervisor, the coworker stopped talking to her, but started staring at her in an intimidating manner. In light of his prior conduct, the coworker’s repeatedly staring at the female employee and the employer’s failure to stop it despite the employee’s complaints could constitute actionable hostile environment sexual harassment according to court.

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Law Office of Arkady Itkin - San Francisco & Sacramento Injury and Employment Lawyer
We represent employees and employers in employment and wrongful termination cases, as well as victims of serious injuries in San Francisco, Oakland, Sacramento, San Jose, Palo Alto, San Mateo and throughout Northern California. 


57 Post Street, Suite 812, San Francisco, CA 94104; Tel. (415) 295-4730; Fax. (415) 508-3474; arkady@arkadylaw.com
Photo used under Creative Commons from Ernst Moeksis