​42% of Women Report Gender Discrimination at Work

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For the past several months, the news has been full of reports of women (and men) raising complaints of gender discrimination and sexual harassment. But are these isolated incidents, or a glimpse at a bigger, societal problem? A survey by the Pew Research Center says that nearly half, 42%, of women report gender discrimination at work.

In this blog post, I will review the Pew Research Center gender discrimination survey. I will describe what gender discrimination at work looks like, and what women (and men) can do if they believe they are being treated improperly.

Pew Research Center Survey Says Gender Discrimination Predates #MeToo Movement

In December, 2017, the Pew Research Center released survey results showing that 4 in 10 women have faced workplace discrimination because of their gender. Survey results included everything from small slights to overt sexual harassment. Lest readers think that this high frequency is due to all the recent publicity of gender discrimination issues, Pew made clear that the survey was conducted between July 11 and August 10, 2017 — months before the #MeToo movement was making headlines. The survey shows that gender discrimination issues are widespread, and are much more than simply the issue of the moment.

25% of Women Report Wage Discrimination

One of the largest areas of concern was wage discrimination. Gender-based pay gaps were a concern for one in four working women, who said they have earned less than a man in the same position. Only 5% of men report making less than a female coworker.

The Equal Pay Act and Title VII of the Civil Rights Act make it illegal for employers to pay women less for the same work as men. This includes everything from salary or hourly wage to bonuses and benefit packages. When an employer uses gender biases to set compensation, employees are entitled to file a complaint with the EEOC to receive additional compensation.

However, the issue of wage discrimination can be complicated by defenses that the employer based compensation on seniority, assignments, employment history, or other gender-neutral factors. When an employee determines that they are being paid less than their other-gendered coworkers, they should talk to an employment discrimination attorney to develop a strong case for wage discrimination.

Women 4 Times as Likely as Men to Experience Competence Questions and Subtle Slights at Work

Pew reports that 23% of women have been treated as though they were not competent at work (compared to 6% of men). 16% reported repeated small slights on the job, and 15% reported receiving less support from senior leaders at work. 10% have been passed over for important assignments.

These apparent small slights are often not enough to prove gender discrimination on their own. Title VII gender discrimination claims must show that gender-based treatment has become so severe or pervasive that it creates a hostile work environment that would negatively affect a reasonable employee.

However, small slights like shift and task assignments or comments about a person’s competence are often signs of bigger problems bubbling just below the surface. An experienced gender discrimination attorney can help employees gather the proof and connect the dots to put together a successful case for gender discrimination under Title VII.

22% of Women Have Personally Experienced Sexual Harassment

The Pew survey distinguished between sexual harassment and the broader issue of gender discrimination. Legally speaking, sexual harassment can occur when employment decisions are made based on a person’s refusal of sexual advances by a superior or coworker. Sexual harassment claims also arise when an employer fails to respond to employee complaints about repeated sexual misconduct or unwanted advances in the workplace.

This is where the #MeToo movement has had the biggest effect on later survey results. An ABC News/Washington Post survey conducted in October found much higher numbers, including 54% of women saying they had received unwanted sexual advances. 30% of these happened at work. An NPR poll in November revealed 35% of women had personally experienced sexual harassment.

Depending on the severity of the sexual harassment, it may only take a single act to establish a Title VII complaint. For example, being fired for refusing sex is itself a strong basis for a sexual harassment claim. In other cases, though, a successful sexual harassment claim is made up of a number of less serious unwanted sexual statements or actions. A sexual harassment attorney can help you develop your strongest case and get the relief you need.

Gender discrimination and sexual harassment are problems that affect women and men in every industry, all across the country. More than just a social media movement, these issues have far ranging effects, touching nearly half of all women who work. At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys have been working to protect the civil rights of women, minorities, and workers for decades. We know what it takes to bring a Title VII case, and we can help you get relief, rather than simply counting yourself as part of the statistics. Contact us to schedule a consultation.

Sexual Harassment When the Boss Is a Woman

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The #MeToo movement on social media has emboldened the victims of sexual harassment — both women and men — to come forward and tell their stories. Men from the entertainment industry to the capitol have stepped down in the wake of sexual misconduct allegations. But what happens to the victims of sexual harassment when the boss is a woman? Does the law protect men too?

In this blog post I will discuss the allegations of sexual harassment against congressional candidate Andrea Ramsey of Kansas. I will review the laws regarding sexual harassment and how they apply when the boss is a woman. I will also explain how men can respond to sexual harassment at work.

#MeToo Sexual Harassment Allegations Raised Against Female Congressional Candidate

On December 15, 2017, news broke in the Kansas City Star of another #MeToo sexual harassment scandal. The news outlet reported on a 2006 sexual harassment lawsuit relating to the local Democratic candidate for Congress. But there was one major difference between this story and the allegations against Representative Conyers or Republican candidate Roy Moore. This time, the candidate was a woman: Andrea Ramsey.

In 2005, Ramsey was the executive vice president of human resources for a private company called LabOne. One of her male subordinates, Gary Funkhouser, filed a complaint with the Equal Employment Opportunity Commission (EEOC), claiming Ramsey sexually harassed him and retaliated against him for rejecting her sexual advances. The complaint alleged that Ramsey (then Andrea Thomas) subjected him to “unwelcome and inappropriate sexual comments and innuendos.” It said she made sexual advances toward him on a business trip, and that when he refused them she stopped talking to him and his performance reviews were suddenly far worse. On June 13, 2005, he was fired.

The EEOC performed an investigation, and was unable to conclude whether Title VII of the Civil Rights Act had been violated. However, it also didn’t exonerate LabOne or Ramsey’s conduct. Instead it notified Funkhouser of his right to sue, which he did.

Ramsey was not named as a party in the federal lawsuit because she was not the employer, LabOne was. She was therefore not involved in the defense of the case or any settlement negotiations. She continues to deny the allegations, even after the company eventually settled the sexual harassment lawsuit in 2006.

Now, the settlement has become public in response to the #MeToo movement and has caused Ramsey to withdraw from the 2018 congressional race. She told the New York Times that the Democratic Party had implemented a “zero tolerance standard” against sexual harassment allegations and was refusing to support her. On December 15, 2017, she officially ended her campaign.

Title VII Protects Against Sexual Harassment When the Boss Is a Woman

The facts in Funkhouser’s allegations are not that unusual in a sexual harassment lawsuit. Plaintiffs across the country face unwanted sexual advances by their supervisors. All too often, when employees reject these advances, negative performance reviews and retaliatory firings are the result.

However, male employees are sometimes less likely than their female counterparts to complain when sexual harassment happens. Cultural differences can make it more embarrassing for men to publicly object to sexual attention by the women around them than women in the same position, particularly when the woman is their boss or supervisor. Because of this, some men may believe there is nothing they can do to prevent sexual harassment when the boss is a woman.

In fact, these forms of sexual harassment are illegal under Title VII of the Civil Rights Act, no matter which genders are involved. Sexual harassment when the boss is a woman is just as illegal as when a man does it. When men face sexual harassment at work, including being fired for refusing sexual advances, they can be compensated for their losses through the EEOC, or in federal court.

If you are facing sexual harassment from your female boss, an experienced employment discrimination attorney can meet with you confidentially to help you develop your claim and protect your rights. At Eisenberg & Baum, LLP, our sexual harassment attorneys will help you collect your documents, file the necessary claims, and represent you in court. Contact us to schedule a consultation. We stand up for you against sexual harassment, even when the boss is a woman.

Sexual Harassment, Non-Disclosure Agreements, and Bill O’Reilly

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Sexual harassment claims have been flying through the media over the last year. The Weinstein Co., Fox News and Bill O’Reilly, and even President Trump have been the target of sexual misconduct allegations. In each of those cases, non-disclosure agreements were used to silence the claims and avoid legal consequences. So why would anyone agree to sign one?

In this blog post I will review the non-disclosure agreements used by Bill O’Reilly and the Weinstein Co. to prevent sexual harassment and misconduct allegations from going public. I will discuss the use of non-disclosure agreements for both employers and employees, and why a worker facing discrimination would be willing to sign one.

Sexual Harassment, Employment Discrimination, and Non-Disclosure Agreements

The #MeToo movement has been around for a while, now. Often, the allegations that hit the media are years, or even decades old. There are many reasons why the victims of sexual harassment or abuse may choose not to tell their story publicly. But sometimes the delays more legal than personal.

Local, state, and federal laws, including Title VII of the Civil Rights Act, make it illegal for supervisors, managers, and employers to harass or discriminate against their employees because of their sex or gender. The victims of sexual harassment and other forms of gender discrimination can turn to the Equal Employment Opportunity Commission or private employment discrimination attorneys to get compensation for sexual misconduct.

In many cases, that involves a lawsuit in federal court, but sometimes the issues can be resolved informally. When sexual harassment allegations resolve out of court, the settlement agreements can include a variety of remedies, including money damages for lost wages and other expenses, changes to workplace policy, and other compensation for harm done. In exchange, the employee gives up his or her right to sue for, and in many cases even talk about what happened on the job by signing a non-disclosure agreement (NDA).

Sexual Harassment Allegations Against Television Big-Wigs Silenced by NDAs

Harvey Weinstein and Bill O’Reilly each faced delayed sexual harassment allegations last year as part of the #MeToo movement. In each case, their companies (the Weinstein Co. and Fox News) had made use of non-disclosure agreements to resolve the matters quietly and minimize media attention. Even then-candidate and reality-TV-star Donald Trump, by his attorney Michael Cohen, used an NDA to silence claims of sexual misconduct in 2016. When confronted with the fact that his lawyer had entered into an NDA with porn star Stormy Daniels, the President defended the decision, calling NDAs “very common among celebrities and people of wealth.” However, the terms of those non-disclosure agreements and the circumstances surrounding them can sometimes cross the line from settlement to cover up.

Bill O’Reilly’s NDAs Go Beyond Silence

The settlement agreement between Bill O’Reilly and Andrea Mackris and Rebecca Gomez Diamond was recently released by order of a United States District Court Judge. The contract went beyond non-disclosure. In addition to strict confidentiality, it required both the women, and their attorneys to turn over evidence related to the allegations, making it harder for them to prove any future case. If any of these materials ever became public, Ms. Mackris was required to disclaim them “as counterfeit and forgeries” — in other words, to lie.

As part of the settlement, Ms. Mackris’s attorneys, Benedict P. Morelli & Associates also agreed to provide legal advise to Mr. O’Reilly on sexual harassment issues, and not to take on new clients with sexual harassment claims against O’Reilly or Fox News. These clauses essentially removed the firm from the pool of experienced employment discrimination attorneys available to fight for Fox’s employees’ rights. This also raise ethical questions, since M. Mackris was required to waive any conflict of interest claims against Fox or the law firm.

The Weinstein Co. Terminates Non-Disclosure Agreements

The Weinstein Co. recently announced that former CEO Harvey Weinstein also “used non-disclosure agreements as a secret weapon to silence his accusers.” While those agreements have not been made public, over 70 women have accused Weinstein of some form of sexual misconduct, up to and including rape. Weinstein was forced out of his company last year as a result of the allegations. Now the company has formally released the victims from any non-disclosure agreements they may have signed, saying:

“The Company expressly releases any confidentiality provision to the extent it has prevented individuals who suffered or witnessed any form of sexual misconduct by Harvey Weinstein from telling their stories. No one should be afraid to speak out or coerced to stay quiet.”

However, the announcement was coupled with the Weinstein Co. filing for bankruptcy and Lantern Capital Partners agreeing to purchase substantially all the company’s assets. This could significantly limit any recovery the Weinstein employees may have.

Why Would Sexual Harassment Victims Sign NDA Settlement Agreements?

With all the bad press, it can be easy to question why sexual harassment victims would agree to sign settlement agreements that include non-disclosure agreements. Why not just go to court?

There is no such thing as a “typical” sexual harassment victim. Employees facing gender discrimination come from every industry, and have a wide variety of life experiences. Some of those circumstances can make private settlement agreements more attractive than a drawn out court battle. Sexual harassment victims may agree to sign a non-disclosure agreement if they:

  • Plan to return to the workplace or seek employment from a competitor
  • Need financial compensation quickly to cover life expenses, medical bills, or mental health costs
  • Value privacy for themselves or their families
  • Could face a counter-suit for wrongdoing at work or violation of company contracts

A private settlement agreement can be a better solution for both employee and employer alike. It can resolve the matter quickly and privately and protect everyone’s interests. However, as with any contract, it is the details that matter. When NDAs try to cover up criminal behavior, the court may not even enforce them.

What Non-Disclosure Agreements Don’t Cover

A non-disclosure agreement is usually paired with a promise not to sue. This waives any right to civil compensation that the sexual harassment victim may have. It also says the person can’t go to the media or discuss the matter with coworkers or future employers. But it does not forgive criminal behavior. If a person has faced sexual assault, he or she can still go to the police and report the crime. In most cases, this will not be a violation of the NDA. Sometimes, it can even cause the judge to void the NDA altogether.

But the employees who sign the non-disclosure agreements may not know the difference. An ex-assistant of Harvey Weinstein told the UK’s MPs that she felt pressured to sign the NDA with Miramax Films, and she believed that if she ever discussed the issue in detail — even with mental health counselors or legal representatives — she would be breaking the law and could be sent to jail. She had no idea that the terms of the settlement agreement may have been unenforceable. She told the Women and Equalities Committee:

“There cannot be a legal document that protects criminal behaviour.”

There are valid reasons for sexual harassment victims to sign non-disclosure agreements as part of out-of-court settlements. A swift and quiet resolution to issues can sometimes be best for everyone. But employees need to know the impact those NDAs can have, and when they cross the line into an illegal cover up.

At Eisenberg & Baum, LLP, our employment discrimination and sexual harassment attorneys know how to work settlement agreements and non-disclosure agreements to our clients’ advantage. If you are facing an out-of-court settlement, we can help you review the language, so you know what you are getting, and what you are giving up. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

New York City Council Passes Stop Sexual Harassment in NYC Act

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The size and diversity of New York City puts employees of all different types, and genders, in close contact. Sometimes, that can result in sexual harassment. In response to the #MeToo and Stand Up movements sweeping the nation, the New York City Council has decided to take the lead, passing the “Stop Sexual Harassment in NYC Act.” But will it be enough to change hearts and minds?

In this blog post I will discuss the Stop Sexual Harassment in NYC Act recently passed by the New York City Council. I will explain what the bills do to fight sexual harassment, and whether some experts believe it will be enough to change hostile workplace culture.

On April 11, 2018, the New York City Council passed one of the strictest anti-sexual harassment ordinances of any state or municipality in the United States. The “Stop Sexual Harassment in NYC Act” goes well beyond federal, or even state Civil Rights laws, to explicitly protect NYC employees from harassment on the job.

The Stop Sexual Harassment in NYC Act Creates Protections for Public and Private Employees

The Stop Sexual Harassment in NYC Act is actually a package of bills, each of which adds, strengthens, or amends existing civil rights ordinances already in place within the city. The Act is designed to extend protections to every NYC employee, whether they work for the government, a large private employer, or a small business in the boroughs.

The package of bills contain a number of sexual harassment protections. The NYC Human Rights Law (NYCHRL) has been amended to explicitly ban sexual harassment, and the city has called on Congress and the President to pass federal bill S.2203/H.R.4734, “Ending Forced Arbitration of Sexual Harassment Act of 2017.”

(Read More about mandatory arbitration in employment contracts.)

For city government agencies, and the offices of the borough presidents, comptroller and public advocate, the Act also requires:

  • Annual reports of sexual harassment incidents to the Department of Citywide Administration Services
  • Annual climate surveys of public employees to gauge awareness of federal and local civil rights protections
  • Production of sexual harassment prevention and response policies from all contractors and subcontractors working for the city
  • Broad review of city policies by the newly founded Charter Revision Commission

In the private sector, the Act:

  • Amends the NYCHRL to remove the minimum employee limit
  • Requires anti-sexual harassment posters be displayed at all work sites
  • Extends the time period to file a sexual harassment claim from 1 to 3 years after the incident

The most ground-breaking provision of the Stop Sexual Harassment in NYC Act is that it requires annual anti-sexual harassment training for all public agencies and private employers with at least 15 employees. The City Commission on Human Rights has been directed to put together a website including an online training program designed to prevent sexual harassment through employee education.

The New York City Council is proud to be putting forward such an aggressive set of regulations. Speaker Cory Johnson said in a statement:

“With the #MeToo and the Time’s Up movements, we have seen that women are forces to be reckoned with, and they made loud and clear that enough is enough. The beginning of the end starts with New York City. All New Yorkers are entitled to a safe, respectful workplace, and this package of legislation sends a strong message to public and private employers that there is no place for sexual harassment in our City.”

Commentators Question Effectiveness of Online Anti-Sexual Harassment Training

The Stop Sexual Harassment in NYC Act is one of the first of its kind, mandating annual anti-sexual harassment training across public and private employers. But some commentators are questioning whether the Act will be effective in changing workplace behavior. Jackie Wattles and Julia Carpenter, of CNN Money, explain that many large employers already use the kind of “online interactive” program that would satisfy the Act’s annual training requirement. They say:

“Frequently they are slide after slide of graphics depicting scenarios in which a male colleague makes an inappropriate advance or remark about a female colleague. The multiple-choice questions require you to select an often unrealistic ‘right answer.’

It’s easy to click your way through such trainings and forget it ever happened. Research shows the training videos are not as effective as once thought.”

They say that where sexual harassment is already a part of workplace culture, mandatory training videos won’t solve the problem. And when training illustrations focus on stereotypical demographic arrangements — such as a white man is harassing a woman of color — they can even have the opposite effect, leaving men feeling “blamed, isolated, or angered.”

Instead, Wattles and Carpenter encourage New York City employers to engage in training tailored to specific workplaces over cookie-cutter training programs. They also said programs are much more effective when they focus on bystander intervention and empower men to help stop the problem, rather than calling out mistakes that could be made.

The New York City Commission on Human Rights has until April 2019, when the bill takes effect, to create its online training program. Creating a one-size-fits-all solution that will adequately address the spectrum of anti-sexual harassment needs is a tall order. It will take time to test the effectiveness of any solution put forward and to tweak the system to do the most good for New Yorkers facing sexual harassment at work.

If you are facing sexual harassment or other forms of gender discrimination at work, the sexual harassment attorneys at Eisenberg & Baum, LLP, are here to help. From our headquarters in the heart of New York City, we represent the victims of hostile work environments in state and federal court, and in front of regulatory agencies at every level of government. We can help you understand your rights and choose the best option to protect your interests. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

When Do I Have To Report Sexual Harassment?

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The news for the last few months has been full of sexual harassment allegations from decades ago. High-powered men from Hollywood producer Harvey Weinstein to long-time congressman John Conyers have faced allegations that they sexually harassed women in their employ years before. But could those allegations still result in civil rights lawsuits? Or is it too late to report sexual harassment?

In this blog post, I will review the statute of limitations under Title VII of the Civil Rights Act and other deadlines to report sexual harassment. I will explain how this could affect the decades-old allegations that have arisen in the news, and what you need to do if you think you have a sexual harassment claim.

Deadlines to Report Sexual Harassment at Private Companies

Years-old sexual misconduct allegations may make good news headlines, but they don’t provide relief to employees. Federal anti-discrimination laws, including Title VII of the Civil Rights Act, give workers a limited period of time to file a sexual harassment charge.

If you work for a private employer, you have 180 days after the incident to file your complaint. If a state or local law applies to your case, the filing deadline could be extended to 300 days after the incident. Internal H.R. complaints or private arbitration do not extend this deadline, so it is wise to start the reporting process as soon as possible.

Statute of Limitations for Federal Government Employee Complaints

Federal employees face an even tighter timeline to report sexual harassment at work. Many federal employees must contact the EEO Counselor at the agency within 45 days of incident. Congressional employees may have 180 days under the Congressional Accountability Act. Then most federal EEO complaints will be referred to internal mediation or other dispute resolution programs. If the case is not resolved in that process, federal employees must file a formal complaint within 15 days of receiving a about how to file.

Calculating When a Sexual Harassment Incident Start the Clock

It may be easy to measure when overt sexual harassment happens. But in other cases it can be difficult to determine when the incident starts the clock on the statute of limitations. When there is more than one incident of discrimination involved, a separate deadline applies to each event. For example, if your supervisor approached you for sexual relations in exchange for promises of a raise or promotion in March, June, and July, you would need to file a complaint about the first behavior by November. Under the 180 day statute of limitations, if you waited until January or February to file your complaint, you would only be able to collect damages related to the later incidents.

However, in harassment cases, while you still must file your complaint within 180 or 300 days of the latest incident, the Equal Employment Opportunity Commission (EEOC) will look at all incidents of harassment, even if they happened months or even years before. This is because, a successful sexual harassment claim requires employees to show a pattern of offensive behavior over time.

Getting a Sexual Harassment Complaint Started

Getting a sexual harassment complaint started often depends on the internal policies of your company. Especially if you are a member of a union, you may need to complete your employer’s complaint process before you file with the EEOC. With the short deadlines to report sexual harassment, it can sometimes be challenging to file a formal complaint in time to receive full compensation for your damages.

At Eisenberg & Baum, LLP, our employment discrimination and sexual harassment attorneys can step in to your case even while you are still at the internal review stages. We can help you ensure you meet federal, state, and local requirements, and report sexual harassment before the statute of limitations expires. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

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.