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Message #745 Sexual harassment: Workplace, legal remedies

mp3 #745 Sexual Harassment at Work - Legal Remedies (mp3 file)


If you believe that you are being sexually harassed on the job, there are several ways to try to stop it. The first is to try and resolve the problem yourself within the workplace. For information, review SmartLaw Message #744, on what sexual harassment is, strategies to stop the sexual harassment, and to prevent it in the future.

If the methods outlined in SmartLaw Message #744 don't work or are not available to you, you may have several legal choices. The legal choices available to you in an employment case are complex, and an individualized analysis of your particular situation is usually required.

In most instances, there are certain administrative requirements that must be exhausted before you can file a lawsuit in a civil court. Should you pursue legal avenues, you must immediately file an administrative charge of discrimination with the California State Department of Fair Employment and Housing (DFEH) and/or the U.S. Equal Employment Opportunity Commission (EEOC). The DFEH and EEOC are the government agencies that enforce state and federal laws prohibiting discrimination in employment. You must file a complaint with the EEOC within 300 days of the discriminatory act or with the DFEH within one year of the discriminatory and/or wrongful act.

Depending on the severity of the harassment, and the effects of the harassment on you, you may want to consider filing a worker's compensation claim as well. If you have been terminated for complaining of sexual harassment, you should file for unemployment insurance benefits. Even if you quit your job, as long as the reason you quit was because you are unable to continue working under the hostile work environment, you may be considered to be "constructively discharged" and still be eligible for unemployment insurance benefits.

Of course, if the harassment is so serious that it would be considered a criminal act, such as stalking, rape or any other kind of physical sexual assault or abuse, you should immediately file a police report at the police station nearest you. You should then seek legal advice from an attorney to get information about the specific legal implications of your situation.

Both the DFEH and EEOC handle charges of discrimination in employment. It is usually in your best interest to get legal information and advice from an attorney who knows employment and labor law, including discrimination and sexual harassment claims, before you visit the DFEH or EEOC for an interview. Although there are some differences, the basic procedures and goals of the State and Federal agencies are similar. You need not be fired to file a complaint with either agency. If your complaint is accepted for investigation, the agency will contact your employer to hear its side of the story. If the agency considers your claim to be meritorious, they may assist you in attempting to resolve your complaint. An example of what both agencies consider a good or meritorious settlement offer is:

1. Reinstatement in your position, or a transfer to a different department;

2. Awarding you all or part of your wages and benefits lost due to the discriminatory behavior;

3. Clearing your personnel file of any negative information in reference to the discrimination; and/or,

4. Providing you with a neutral job reference.

Keep in mind that these two agencies are not acting as your advocate, such as a private attorney would, nor are they acting as the employer's advocate. Their role is to investigate possible violations of the law prohibiting discrimination in employment, and to assist in finding a fair remedy to stop this behavior. Because it is an administrative remedy, financial compensation to you can only be for work-related losses.

You will not be charged for an investigation conducted or assistance provided by the DFEH and/or the EEOC. However, generally, if your claim is meritorious, the amount of money offered in settlement, will be less than if you pursue a civil lawsuit against the employer. In order to get the most out of this type of remedy, you need to be prepared to inform the agency of the details of your complaint. To do this, bring your detailed written chronology of the events, and your documentation when you speak with the agency investigator. Be able to provide the major events, the names and job titles of everyone involved. Have witnesses' names and titles (if any) available. Assist your consultant or investigator, by providing him or her with as much accurate information about your case as you can. Make sure that you review the questionnaire the agency provides entirely, and make sure that it is accurate, before you sign it. It is also your right to ask questions about what the agency's step-by-step procedure is. Do not be afraid to ask questions. Also, remember it is your right to have your complaint taken by the agency. If an agency representative refuses to accept your complaint, insist that your complaint be taken, and demand to speak to his or her supervisor.

There are two types of complaints you can file with the agencies. If you want to file a civil lawsuit, without asking the agency to investigate your complaint, you must file the administrative charge and request an immediate "right-to-sue" letter. Once received, you can then file a civil lawsuit against the employer in Court. On the other hand, if you want the agency to investigate your complaints, you must file an administrative charge requesting an investigation, then one or more events may happen. If the agency determines that your complaint has merit, an investigation will be conducted. At the conclusion of the investigation, the agency may determine that your complaint is without merit, and issue a "right-to-sue" letter based on a "no cause" finding. If the agency finds that your complaint has merit, they may assist you in obtaining a settlement offer from your employer. However, even if the agency determines that your complaint has merit, it does not always mean that the employer will give you an offer of settlement. What it does mean is that if you do receive a settlement offer, and if you find it acceptable, you will sign a written settlement which will release the employer from any further liability on your complaint, and bar your right to sue in a civil lawsuit.

If a settlement cannot be worked out between you and your employer, the state agency's lawyers may schedule an administrative hearing on your behalf before a state administrative law judge, or they may elect to sue in a civil lawsuit on your behalf, if they feel that the employer has violated the law. In either case, the judge or the jury will make a decision as to whether you were sexually harassed, by a preponderance of the evidence. Preponderance of the evidence means that it is more likely than not, that you were sexually harassed.

A right-to-sue letter gives you the right to sue your employer for discrimination, either in state or federal court. You most likely will need the assistance of a private attorney if you elect to file a lawsuit. There are definite legal time limitations associated with suing in court. Therefore, it is again in your best interest to get legal advice and information from a private attorney who is knowledgeable in employment law as soon as possible.

Consulting with a qualified attorney will also help you to determine what other legal choices you may have available to you. These choices may include suing your employer for money and damages, for the personal harm you have suffered as a result of the sexual harassment. This is commonly known as "pain and suffering" damages. You may also be entitled to an award of damages for other economic losses. Qualified attorneys can best explain in detail the specific means by which they may be able to pursue such a civil action against your employer.

Attorneys are also invaluable in assisting you to get the most out of your settlement through your complaint to a state or federal agency. Keep in mind that attorneys do cost money. Therefore, it is best to have some goals set, know what you want, get a second opinion, and above all be realistic in your demands.

In addition to other legal remedies, you should consider two other legal choices. The first is unemployment insurance benefits, and the second is worker's compensation insurance benefits. If you are fired, laid off, or forced to quit your job, you may be eligible for unemployment benefits. If you were fired, your employer must show a reason for having fired you. If you were forced to quit, the burden of proof is on you to show that you were constructively discharged and that any other reasonable person would have quit under the same circumstances.

If you are unable to work due to physical injury, or emotional distress, caused by sexual harassment, you may be eligible for worker's compensation benefits. You can get more specific information about this choice from your employer, the State of California Worker's Compensation Appeals Board in your area; or from a certified worker's compensation attorney. If you are considering this choice, don't wait, because there are definite legal time limitations for these claims.

Finally, if you signed an agreement to arbitrate employment-related claims with your employer, you may find that you cannot pursue a civil lawsuit. Instead, you will be required to participate in a binding contractual arbitration to litigate your claim before an arbitrator. You will not have a right to a jury trial. It is important that you review all paperwork that you signed with your employer to determine whether you signed an arbitration agreement. Whether or not the arbitration is legally binding on you is a complex issue, and you must have the arbitration agreement analyzed by a qualified employment lawyer. Do not accept the employer’s word that it is legally binding.

As you can see, you may have many legal options when seeking a legal remedy to sexual harassment. The laws relating to employment are complex and if you believe that you have a valid claim, you should consult with a qualified employment lawyer on your particular situation.

The State Department of Fair Employment and Housing has nine different employment office locations in California. They are located in Bakersfield, Fresno, Los Angeles, Oakland, Sacramento, San Diego, San Francisco, San Jose, and Santa Ana. For the telephone number of the office nearest you, look in the white pages of your telephone directory, under California, State of, and then under Fair Employment and Housing Department or on the internet at www.dfeh.ca.gov.

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