Full Description

“This compassionate, practical guide is a must read for employees and employers alike.”
—Jody Larimore, Human Resources Director, Northwest Region, Wells Fargo Bank

Take advantage of the workplace rules that protect you.

While it may seem that your employer holds all the cards at work, your have rights and legal protections that your employer must follow. It is important to understand the employment issues you face and how the interactions between employee and employer affect you.

Your Rights at Work guides you through the maze of regulations that concern you. It teaches you how to protect yourself and when to use the rights you are entitled to. Use the practical advice it gives along with the following features to get the most out of your job.

Frequently Asked Questions
Tips to Survive Discipline
Q and A on Settling Your Dispute
Taking Your Case to Court
Reporting Illegal Harassment
Handling a Termination
EEOC Office Directory
State Discrimination Enforcement Agencies
Hiring an Attorney
Plus much, much more

Table of Contents

Introduction -

SECTION ONE: UNDERSTANDING EMPLOYMENT LAW -
Chapter 1: Our Legal System -
The Law
Stages of Litigation

Chapter 2: Discrimination -
Proving Discrimination
Federal Remedies
Procedural Hurdles
State Law Protection
Rights of Rejected Applicants
Protection for Private Employees

Chapter 3: Wrongful Discharge -
Public Policy
Proving Wrongful Discharge
Wrongful Constructive Termination
Remedies

Chapter 4: Tort Claims -
Intentional Infliction of Emotional Distress
Fraud
Intentional Interference with Economic Relations
Invasion of Privacy
Defamation
Negligence -

Chapter 5: Employment Contracts -
Contract-Making Opportunities
Enforcing Contracts
Employee Handbooks
Past Practice
Duration of Employment
Contracts Implied by Law
The Covenant of Good Faith
The Problem with Contract Claims
Negotiated, Written Contracts
Termination Provisions
Compensation
Special Clauses

Chapter 6: A Closer Look at Title VII -
Race Discrimination
National Origin Discrimination
Gender Discrimination
Sexual Orientation Discrimination
Religious Discrimination

Chapter 7: Sexual Harassment -
Supervisors
Coworkers
Identifying Sexual Harassment

Chapter 8: Age and ERISA Discrimination -
Age Discrimination
Employee’s Remedies
ERISA Discrimination

Chapter 9: Federal Rights of Disabled Workers -
The Rehabilitation Act
The Americans with Disabilities Act

Chapter 10: Whistleblowing and Retaliation Statutes -
Opposition Statutes
Statutes Relating to Protected Activities
State Laws -

Chapter 11: Employee Benefits and Working Conditions
The Family and Medical Leave Act
Retirement Legislation (ERISA)
COBRA Rights
The Fair Labor Standards Act
The Davis-Bacon Act
Plant Closure Legislation
Occupational Safety and Health Act
Workers’ Compensation Laws
Unemployment Compensation
Drug Testing Laws
Employee Polygraph Protection Act
Health Insurance Portability and Accountability Act
Garnishment
Immigration Laws and the Workplace
Rights to Unionize

Chapter 12: Employee Privacy -
Expectation of Privacy
Telephone Monitoring
Email Monitoring

Chapter 13: Distinct Employee Groups -
Government Employees
Union Employees

SECTION TWO: USING EMPLOYMENT LAW -
Chapter 14: Reasons for Discrimination -
Prejudice
Resentment Due to Affirmative Action
Frustration Due to Accommodations
Anger
Greed
Fear

Chapter 15: Workplace Harassment -
Reporting Illegal Harassment
Retaliation for Reporting Illegal Harassment
Cooperating with the Investigation
The Reporting Aftermath
Common Questions Concerning Workplace Harassment

Chapter 16: Surviving Employer Discipline -
Surviving Pending Discipline
Verbal Warning
Written Warning
Suspension or Involuntary Leave
Union Employees
The Aftermath
Tips to Survive Employer Discipline

Chapter 17: Handling a Termination -

Chapter 18: Evaluating Your Legal Case -
Potential Success in Court
No Case is Perfect

Chapter 19: Hiring an Attorney -
Determining if You Need an Attorney
Selecting an Attorney
Types of Attorneys
Fees
Retainer Agreements
Changing Attorneys

Chapter 20: Filing a Lawsuit -
The Prefiling Stage
The Postfiling Stage
The Trial Stage
The Appeal Stage

Chapter 21: Settling Your Case -

SECTION THREE: FREQUENTLY ASKED QUESTIONS ABOUT YOUR RIGHTS IN THE WORKPLACE -

Glossary -
Appendix A: EEOC Office Directory -
Appendix B: State Discrimination Laws and Agencies -
Appendix C: Notable Wrongful Discharge Cases -
Notes -
Index -
About the Author -

Excerpt

Sexual Harassment in the Workplace

Excerpted from Your Rights at Work by Richard C. Busse © 2005

Sexual harassment is a type of sex discrimination. It is prohibited by both state and federal law. Both men and women are legally protected from sex discrimination. Same sex sexual harassment is also prohibited.

As a matter of a working definition, sexual harassment is any verbal or physical conduct of a sexual nature that is unwelcome, and is both objectively and subjectively offensive. In other words, it is an act or condition a reasonable person would find offensive and one
the victim found offensive as well.

While there is no law against sexual activity in the workplace that is welcome, the Supreme Court has said that conduct can be unwelcome for Title VII purposes even though the victim submits to it. The Supreme Court has recognized that to submit to sexual advances out of fear of losing one’s job does not make the conduct welcome. Thus, the issue in a sexual harassment case is whether the harassment is unwelcome, not whether the victim consents.

It does not necessarily need to be verbally expressed that the conduct is unwelcome. Courts will take into account nonverbal communication such as ignoring or walking away from the harasser. Further, it can be unwelcome even though the victim formerly participated in the conduct, so long as its unwelcomeness was later communicated.

Sexual harassment can result in liability not only when you are terminated, demoted, or refused a pay increase or promotion because of it, but also where it creates a hostile working environment. However, the Supreme Court has made it clear that not every act of a sexual nature that is unwelcome and offensive will be actionable. It has said that offhand comments, simple teasing, and isolated incidents, unless extremely serious, will not amount to liability.

In order for there to be liability for creating a hostile working environment, the harassment must be sufficiently severe or pervasive as to alter the conditions of the victim’s employment and create an abusive work environment. In order to determine whether that standard has been met, the court will examine the totality of the circumstances, including the frequency of the conduct, its severity, whether it is physically threatening or humiliating or a mere offensive statement, and whether it interferes with an employee’s work performance.

SUPERVISORS
In holding employers liable for supervisor sexual harassment, the Supreme Court differentiates between cases of sexual harassment that have resulted in a tangible employment action and others. A tangible employment action is one, for example, that has resulted in a termination, denial of a raise or promotion, or undeserved reassignment.
As developed by the Supreme Court, the rule is that under Title VII, the employer is liable for the acts of a supervisor that involves a tangible employment action. But in a case of a hostile work environment where no tangible employment action has occurred, the employer may escape liability if it can prove:

? it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and,

? the victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, or to otherwise avoid the harm.

That is why it is so important to report the harassment. Otherwise, you may let the employer off the hook altogether.

COWORKERS
The employer is liable for the acts of coworkers that it knows or should know is occurring, but is not responsible for acts of coworkers of which it is reasonably unaware. Therefore, if the employer has knowledge of prior incidents of sexual harassment by your harasser, it may be liable for that coworker’s harassment of you. Once you report the harassment, the employer is placed on notice and it may be liable for subsequent acts committed against you. Similarly, the employer may be liable for the acts of nonemployees in the workplace the employer knows or should know are occurring.

Once the employer has notice of the sexual harassment, certain responsibilities follow. It must take immediate and appropriate corrective action designed to end the harassment. While the courts give the employer a great deal of latitude to decide what action to take,
the Ninth Circuit Court of Appeals, for example, has said the action must take some form of discipline.

IDENTIFYING SEXUAL HARASSMENT
As stated earlier, it is important to report sexual harassment when it occurs. Otherwise, the harassment may continue. If it does and the employer knows nothing about it, the employer may not be legally responsible for what follows. Understandably, however, it is not something that is easy to do. In fact, it is not always easy to know when to report sexual harassment or even whether it is occurring.

In the beginning stages of the classic case of boss sexual harassment of a female, the victim first feels off-balance by the overture and unsure of, not only how she should respond, but also whether she even heard it right. Sexual predators are usually smart enough to mask their predatory intent behind words and conduct that are capable of double and triple interpretations, at least one of which is innocent. The victim does not want to appear to impute evil intent where there was none. So silence is the usual result.

The predator, not having heard a “no,” usually repeats the advance. Again, the victim is either reluctant to draw the worst conclusion or is reluctant to cause embarrassment to either party. She knows that if she restates the disguised advance in more direct terms and then rejects it “If you mean will I go out with you, the answer is no,” this leaves her open to the comeback “That’s not what I meant at all.” She also knows that if she rejects the overture, she may be candidly communicating her position, but may embarrass the inquirer and risk reprisal. So silence again seems the safe bet.

Feelings of guilt are also usually present. She usually wonders what she is doing to provoke these verbal and physical assaults. She usually blames herself and concludes she must be doing something to invite them. She may modify her behavior by wearing baggy
clothes or less makeup or by distancing herself from the aggressor. During this process of self-examination, she again spares herself the trauma of confrontation.

At some point, however, she reaches the unequivocal conclusion—it’s not me; it’s him. She may reach the conclusion through conversations with a friend, coworker, relative, lawyer, psychologist, or simply by process of elimination. Usually, by this time, the probing and prodding has interfered with her work, has upset her emotionally, and probably has become an item of some discussion and debate at work. She has modified her behavior by learning to communicate her displeasure of the advances with nonverbal conduct. At first she ignored him. Then when he made a sexual remark, she would give him a dirty look or make a tsk tsk noise. Now she gets up and walks away.

Her boss grows impatient with what he views as her game-playing—she won’t say yes, but she hasn’t said no. His attitude changes: he tends to be short with her, his tone of voice hardens, his instructions become quick, and he tends to look for mistakes and more frequently calls them to her attention. There may be interludes of peace during cordial lunches in which he speaks of future advancement. These dangling carrots are usually followed by renewed sexual advances. When the advance is rejected, the retaliation intensifies. In this classic example of boss sexual harassment, the victim faces a constantly escalating upward spiral of tension and hostility.

If the foregoing sounds familiar, it may be that you are being subjected to sexual harassment. As stated, ordinarily you should communicate your displeasure early on, first to your boss and if the boss does not desist, to his or her supervisor, or to the human resources manager. How you choose to solve the situation is less important than that you do it.

As a practical matter in sexual harassment cases that are taken to court, the conduct of the offender is so egregious and offensive that the unwelcomeness of the conduct is not even an issue. To stop sexual harassment in its beginning stages, however, it is important to make known that you are not receptive to the overture being made.

Reporting Harassment
An initial reaction of many people who find themselves the target of sexual harassment is, “If I accuse my boss of sexual harassment why would anyone believe me?” However, if you do not report the problem, the harassment will continue, intensify, and you will be
forced to leave eventually. If you report the harassment, at least you will have gone on record and given the employer a chance to do the right thing.

An investigation normally follows. The investigation will give you some respite temporarily after the harasser learns of it and goes on his or her best behavior. During the investigation, the harasser may deny the charge, although sometimes he or she may admit it. Afterwards, even if the result is not in your favor, the fact that you demonstrated your willingness to report it, may deter future harassment. Therefore, in terms of giving yourself relief, it is less important that people believe your story than that you make your position known.

Usually, some corroborating evidence will support your story. You probably are not the first victim of this person’s behavior. If the sexual harasser denies that he or she has sexually harassed you because he or she would never harass an employee, another employee’s story may contradict the harrasser’s and tip the balance in your favor.

Furthermore, harassers engage in certain behavioral characteristics as part of their pattern of harassment that involve wider numbers of players. For instance, although he may have asked only you to accompany him on that weekend trip to the Bahamas, he may have been giving back rubs, neck rubs, hugs and kisses to others. Other people in the office may have been witnesses to sex jokes, which require an audience, or of the boss’ retaliation after your rejection, by humiliating you in public, because the boss desires an
audience to heighten the mortification.

In addition, if the harasser is questioned by human resources about the reasons for a poor evaluation or discipline against you, the rationale for that action may not stand close scrutiny. That only supports the theory that some other motive accounted for it.

Finally, the harasser may share personal and sometimes intimate information or details with the victim that the victim would only know if the harasser had informed the victim of them. If he did not propose sex with her, for example, how did she learn that he had access to the president’s penthouse that weekend? Whether he did or not is objectively verifiable. He may also share intimate details about his marital problems and his wife’s treatment of him. Even a comment like my wife is out of town would be told to a file clerk only under very limited circumstances and is objectively verifiable. If you report, you may be surprised how readily others will believe your story, or at least reserve judgment, regardless of your position at work.

Retaliation for Reporting Sexual Harassment
If you are terminated for reporting or resisting sexual harassment, the law provides even broader remedies. In most states, you would be entitled to sue for common law wrongful discharge. That would entitle you to recover damages for economic loss, emotional distress, and, in some cases, punitive damages without regard to the caps on damages under Title VII. Even if you do not lose your job, retaliation for reporting sexual harassment would be unlawful under Title VII and most state discrimination statutes.

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