Can I Be Fired for Getting Pregnant?

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Learning that you are expecting a child should generally be a happy experience. Unfortunately, many employees face fear instead of excitement when they learn they are having a child. They may be worried that they could be fired for getting pregnant.

In this blog post I will review the recent settlement in EEOC v. Dash Dream Plant, Inc., Case No. 1:16-cv-01395-DAD-EPG, a pregnancy discrimination lawsuit filed against floral wholesaler Dash Dream. I will review the federal laws that protect pregnant employees, and explain what women can do if they are fired for getting pregnant.

The Pregnancy Discrimination Act Protects Workers Expecting Children

Pregnant mothers have enough to worry about without adding discrimination at work. The Pregnancy Discrimination Act (PDA) applies all the protections of the federal Civil Rights Act to people facing discrimination for getting pregnant. Under the PDA, employers are prohibited from discriminating against applicants or employees who:

  • Are pregnant
  • Were pregnant
  • Could or intend to become pregnant
  • Have a medical condition related to pregnancy
  • Consider or have an abortion

If your employer has 15 or more employees, the law protects you from being fired, passed over for promotion, given less desirable shifts or assignments, or forced to take leave. An employer can prevent you from doing a job that poses a significant safety risk to others due to your pregnancy, but it cannot remove you from a task or reassign you because the work would pose a risk to you or your baby.

Depending on the circumstances of their pregnancy, expectant mothers may also be entitled to accommodations under the Americans with Disabilities Act or unpaid leave under the Family Medical Leave Act.

Orchid Growers Fired for Getting Pregnant

The Equal Employment Opportunity Commission (EEOC) is responsible for investigating pregnancy discrimination claims. In September 2016, the EEOC filed a lawsuit against Dash Dream Plant, Inc., a company that grows orchids for retail and wholesale buyers in Dos Palos, California. According to its complaint, female employees at Dash Dream were instructed not to get pregnant at staff meetings. They were warned that if a female worker became pregnant, she should consider herself fired. The complaint also said that women who left to have their children were not reinstated or rehired after childbirth.

The EEOC said this was illegal pregnancy discrimination. After pre-litigation conciliation failed, the EEOC filed a a lawsuit in the U.S. District Court for the Eastern District of California. As litigation progressed, so did the settlement talks. On October 16, 2017, the EEOC announced that Dash Dream had agreed to a settlement and consent judgment. The order:

  • Awarded $110,000 to two employees who had been fired for getting pregnant
  • Appointed an external equal employment opportunity monitor at the company’s expense for five years
  • Revised the employer’s policies and practices regarding pregnancy discrimination
  • Created a centralized tracking system for discrimination complaints
  • Required semi-annual progress reports
  • Retrained employees and management personnel regarding pregnancy discrimination

Melissa Barrios, director of the EEOC’s Fresno Local Office, said in a statement:

“We are encouraged by Dash Dream’s acknowledgment of a woman’s fundamental right to have children, and not lose her livelihood for that choice. The changes that will be put in place as part of this settlement will benefit not only women, but the workforce as a whole.”

What to Do if You Are Fired for Getting Pregnant

Women and families have the right to have children without the fear of being fired for getting pregnant. But unfortunately, pregnancy discrimination still happens. If you have been fired or discriminated against because of your pregnancy, the employment discrimination attorneys at Eisenberg & Baum, LLP, can help. We can review your case and negotiate with your employer to get the accommodations you need without losing your job. If negotiations fail, we can help you file a complaint with the EEOC or in court. If you are facing pregnancy discrimination, contact us today to schedule a free consultation.

What is Workplace Bullying?

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Workplace bullying is a growing problem. It disrupts productivity and makes employees miserable at work. But it isn’t always clear what counts as workplace bullying. Employees may not realize they are a victim or know what they can do to stop the abuse.

In this blog post, I will describe workplace bullying and give you some behaviors to watch for. I will also explain what you can do if you witness or are the target of bullying and explain some of the legal options available.

Types of Workplace Bullying

There are as many types of workplace bullying as there are working environments. A bully uses whatever means will give him or her the most power or control over the targets. Some common bullying methods include:

  • Yelling, screaming, and cursing
  • Berating or humiliating comments
  • Double-speak intended to destroy the target’s credibility or reputation
  • Constant criticism and misplaced blame
  • Denial of resources, time, or information needed to do the job
  • Using personal information against the targets
  • Demands that things be done the bully’s way
  • Flaunting superiority in role or knowledge
  • Emotional manipulation

How to Identify Workplace Bullying

According to Dr. Judy Blando of the University of Phoenix, nearly 75% of employees have been affected by workplace bullying — either as a target or a witness. But not everyone realizes what they are seeing. Workplace bullying is repeated, abusive conduct targeting one or more person. It can be threatening, humiliating, or intimidating. It can also include workplace sabotage, preventing the targeted employees from getting their work done. According to the Workplace Bullying Institute, the behavior:

  • Is driven by the bully’s need to control the targeted employees
  • Is initiated by the bully, who chooses when, where, how, and to whom the bullying happens
  • Escalates over time by involving others or becoming increasingly abusive
  • Places the bully’s personal agenda over the company’s business interests
  • Results in health, well-being and professional consequences to the targets

The victims of bullying suffer a wide variety of mental and even physical injuries. They may question their own competency or find themselves suffering from headaches, indigestion, or sleeplessness. Eventually, many workplace bullying victims must take time off to address these injuries. They may find themselves making the hard choice to quit to escape workplace harassment.

How to Stop Bullying at Work

Unfortunately, bullying isn’t automatically illegal at the federal level. Many states do have worker protection laws that cover some bullying tactics, like cyberbullying. However, federal and state laws usually require a bully to be motivated by a particular bias before they kick in.

Employees need to know what they can do to stop bullying at work. Workplace bullying can be encouraged or discouraged by company policies and a corporate culture that favors certain “high performers” or personality types. In those cases, it will often take the combined voices of victims and witnesses alike complaining about a bully’s behavior before an employer will take action. If you’re thinking about speaking up, you may want to build support among your coworkers.

Medium and large companies often have internal complaint systems in place to address workplace bullying and other forms of harassment. They may also have anti-bullying policies or behavior guidelines that can be used as a shield. Your HR department or union representative should be able to explain options available to you internally. An experienced workplace harassment attorney can also help you negotiate for changes in corporate policy and culture that make it harder for bullies to avoid discipline.

What to Do When Workplace Bullying is Illegal

Bullying itself may not be against federal law, but many of the ways bullying happens fall within Title VII of the Civil Rights Act. If an abuser’s conduct is based on race, gender, religion, or other protected traits, you may be able to file a complaint with the Equal Employment Opportunity Commission (EEOC) or in federal court. In other cases, an employer’s treatment of a bullying incident may violate the company’s written policy or its employment contracts. In those cases, a contract enforcement lawsuit can force businesses to put an end to the abuse.

Fighting against workplace bullying takes creativity and the ability to see the big picture. At Eisenberg & Baum, LLP, our experienced employment discrimination attorneys know how to push employers to change their ways. Protect yourself and your job from becoming a victim of bullying. Contact us to schedule a consultation and find out what we can do to help.

Concerned About Workplace Harassment: 5 Questions to Ask

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Going to work is increasingly stressful. Someone at your job, or maybe several people, are harassing you and making it hard to focus on your work. If you are concerned about workplace harassment, here are 5 questions to ask to determine if you have a claim for sexual harassment.

In this blog post I will review the law behind sexual and workplace harassment. I will also give suggestions for how you can prepare yourself before starting your case.

1. Have You Objected to the Harassment?

Title VII makes it illegal for employers to allow harassment at work based on a number of protected traits, including race, sex or gender, and religion. But for your discrimination claim to be successful, it must be clear that the behavior in question was objectionable. Employers are sometimes able to defend against discrimination claims by saying the complaining employee was playing along or didn’t seem bothered by the conduct.

Before heading to the lawyer’s office, ask yourself “Have I objected to the behavior?” This can be as simple as saying “That’s not funny” or as formal as a complaint issued with your union representative. The more often and more formally you object, the stronger your case will be that the conduct was unwanted harassment, not just horseplay at work.

2. Have Other Employees Seen the Harassment?

Workplace harassment claims often depend on the strength of witnesses’ testimony. If the only evidence you have is your own word, you will be facing an uphill battle. There are lots of ways to prove a workplace harassment case. If other employees were there when the harassment happened, that can be a great place to start. So ask your coworkers, “Did you see what he (or she) just did?”

In a sexual harassment claim, in particular, talking to other employees about what happened to you can often reveal patterns. You probably aren’t the only one who has faced unwanted sexual advances, or had managers tell you to toughen up rather than dealing with the problem. By talking to your coworkers about what they have seen, you can strengthen your case, and help them out as well.

3. Do You Have the Proof You Need?

Proving a workplace harassment claim isn’t just about witnesses. Often sexual advances or racial slurs show up in writing. Ask yourself “What proof do I have?” This could include:

  • Messages through a workplace communications app
  • Emails
  • Notes
  • Photos of offensive behavior or imagery
  • Copies of performance reviews
  • Copies of internal complaints and reports

These documents should be gathered and either printed or copied to a personal computer in a harassment log. By gathering your proof outside your employer’s systems, you can be sure you will have access to them no matter what happens on the job.

4. How Did Management Respond?

To file a workplace harassment claim with the Equal Employment Opportunity Commission (EEOC) or in court, you need to show more than just that the behavior happened. You also need to show that your employer failed to respond appropriately. Once you have reported the behavior, ask yourself “How did management respond?”

A reasonable response to a workplace harassment complaint doesn’t necessarily mean that you got what you wanted. But it should address to your concerns and minimize the chance of the harassment continuing. If you feel like your concerns were ignored or you are treated worse because of your complaint, you may have a strong case for workplace harassment.

5. How Do You Want To Resolve Your Claim?

The biggest question to ask yourself before filing a workplace discrimination claim is what you want to get out of it. Depending on your circumstances, you may prefer getting your job back, making changes to company policy, or simply being compensated for your time and frustration.

At Eisenberg & Baum, LLP, our experienced workplace harassment attorneys can help you answer the question, “How do I want to resolve my claim?” We will meet with you to review your case, and your options, and decide when, where, and how to file your claim. Contact us today to schedule a free initial consultation and get your case started.

Privacy in Reporting Sexual Harassment

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It can be intimidating to face sexual harassment at work. But for many, reporting that discrimination can be just as stressful. Find out why privacy in reporting sexual harassment is so important, and how you can protect your confidentiality and your dignity at the same time.

In this blog, I will discuss why privacy is important in reporting sexual harassment within a company. I will also address how informal negotiations and settlement agreements can protect the privacy of both employers and employees.

Title VII and Sexual Harassment

Title VII of the Civil Rights Act protects against gender discrimination and sexual harassment. The law prohibits an employer from basing workplace decisions on a person’s gender, or his or her responses to sexual advances. It also requires employers to take steps to prevent and address gender-based conduct that creates a hostile work environment. This could include:

  • Unwanted requests for sexual favors
  • Verbal harassment of a sexual nature
  • Physical contact of a sexual nature
  • Unwanted flirting or sexual advances
  • Offensive remarks about a person’s gender or traits related to gender stereotypes
  • Offensive comments about a person’s gender as a whole

These behaviors must be more than simple teasing or isolated, minor incidents. However, the more frequent or objectively objectionable the conduct, the more likely it will be considered illegal sexual harassment.

The Risk of Reporting Sexual Harassment

It can be intimidating to report any form of discrimination, particularly when the person you are reporting is your superior, manager, or boss. Many employees are rightfully concerned that if they complain about the way they are being treated it could get worse. They may fear retaliation in the form of negative reviews, unfavorable shifts or assignments, or even being terminated. Retaliation for filing a sexual harassment complaint is illegal, but it still happens. That’s why it is important that privacy be built in to any employee reporting procedure.

Ideally, any internal reporting procedure will allow for employees to report illegal sexual harassment and other forms of discrimination confidentially and anonymously. This protects the identity of the victims and witnesses and encourages people to come forward. In investigating these claims, human resource professionals and other decision-makers may well learn these identities. However, this information should be protected and not disclosed to the alleged harasser. This can be difficult in small companies with fewer employees, but it is important to protect staff from hostility and illegal retaliation for filing their complaints.

Resolving Sexual Harassment Privately

When internal complaints don’t work, you may need to file a complaint with the Equal Employment Opportunity Commission (EEOC). But many employees don’t want to file a formal complaint or lawsuit because they can be visible to the public. The EEOC’s informal investigation and negotiation processes protects employee privacy while still bringing the force of gender discrimination attorneys and EEOC investigators to bear in negotiating on your behalf.

When these negotiations work, they can result in confidential settlement agreements rather than a publicly accessible judgment. These settlement agreements can be tailored to your needs, whether that’s removing the harasser, giving you a different but comparable assignment, or paying for you to separate from the company entirely. It also protects you from having to testify in front of a judge or public jury about potentially private and sensitive experiences.

Privacy in Reporting Sexual Harassment Benefits Employers Too

Sometimes, keeping things private is mutually beneficial. There are many reasons why an employer may prefer a sexual harassment complaint to remain private, including:

  • Negative effects on the business’s reputation
  • Bad publicity from local and even national news
  • Possible supplemental complaints from other employees in similar circumstances.

For example, a sexual harassment claim by news anchor Gretchen Carlson started a year of very public complaints and litigation against Fox News, CEO Roger Ailes, and reporter Bill O’Reilly. It resulted in expensive settlements and several high-level executives resigning from the company.

To avoid this, many employers will agree to various private resolutions to sexual harassment claims. This may include negotiations with your union representative or private sexual harassment attorney, or participating in EEOC informal resolution processes, private arbitration, or mediation.

Which method is best for you will depend on your circumstances and what you hope to accomplish from your sexual harassment complaint. At Eisenberg & Baum, LLP, we have sexual harassment attorneys ready to help you fight back against sexual harassment at work. We will meet with you and develop a strategy to protect your privacy and get you back to a comfortable working environment. Contact us today to schedule a free consultation.

Can Private Schools Discriminate Based on Gender?

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Many parents consider public, private, and charter school options available to their students. But could choosing a private school cut a child off from civil rights protections Can private schools discriminate based on gender?

In this blog post, I will review the Title IX prohibition on gender discrimination and sexual harassment in education. I will explain how these laws apply to private and religious schools. I will also explain what to do if you think your child has been discriminated against at school.

Title IX Prohibits Gender Discrimination in Education

Title IX of the Education Amendments of 1972 says gender discrimination is illegal in any educational program or activity which receives federal financial assistance. That means federally funded schools cannot treat students or potential students differently based on sex when it comes to decisions involving:

  • Recruiting and admissions
  • Financial aid
  • Enrollment in academic programs
  • Student services, counseling, and guidance
  • Discipline
  • Classroom assignments
  • Grades or evaluations
  • Athletics, physical education, or extracurricular activities
  • Recreation
  • Housing

Schools covered by Title IX are also required to respond to and prevent sexual harassment in their midst. Violations of Title IX’s prohibition against gender discrimination are reviewed by the U.S. Department of Education’s Office of Civil Rights. They include claims of inequitable treatment of students, teachers, and others involved in a school setting.

Does Title IX Apply to Private Schools?

Title IX applies to any school or educational program that receives federal funding. This includes most state and locally run public schools, state colleges and universities, and charter schools. But Title IX does not apply to private schools unless they receive federal funds.

At first glance, this may seem like parents choosing private schools are signing away their students’ civil rights. In fact, many private schools do choose to receive federal funding for programs like:

  • Reduced or free lunch and breakfast programs
  • Technology or facility upgrade grants
  • Remedial, special education, or low-income assistance

These federal funds come with strings attached – schools accepting government money must comply with Title XI’s gender discrimination laws, and other civil rights laws.

Under the Trump Administration, the Department of Education has announced plans to make additional federal funds available to low-income parents choosing private schools. This could increase the number of private schools subject to Title XI protections.

Are There Different Rules for Religious Schools?

Most private schools are religious. Title IX excludes religious schools “to the extent that application of Title IX would be inconsistent with the religious tenets of the organization.” If a particular school has gender discriminatory policies based on the religious tenets of that organization, Title IX won’t apply.

For example, certain divisions of a number of popular religions believe that men and women should remain separate. Single-gendered schools can sometimes meet Title IX’s criteria, even in the public-school setting, if they provide substantially equal educational options between to students of different genders. However, in the religious school context, a limited curriculum or different educational plan for women, as compared to men, will be allowed if it is based on the school’s religious tradition.

What to Do if You Face Gender Discrimination at a Private School

If you think your son or daughter has been discriminated against at a private school because of his or her gender, contact an experienced discrimination attorney. At Eisenberg & Baum, LLP, we can help you determine whether Title IX will apply, identify options, and negotiate with the school on your behalf. If there is federal funding involved, we can help you file complaints with the Office of Civil Rights and in federal or state court. Contact us today to schedule a consultation and review your case.