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How Can I Protect Myself from a Hostile Work Environment?

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Having to face the challenge of going to work each day in a hostile work environment can take a toll on you. Your work product, health and personal relationships can suffer when you are the target of harassment at work. You shouldn’t have to worry about jokes, slurs, touching and other unwanted conduct on top of your job duties. So how can you protect yourself from a hostile environment at work? Fundamentally, you should know that it’s your employer’s responsibility to create and maintain a workplace free from harassment, and it should never be considered the victim’s responsibility to avoid illegal harassment. However, there are some steps we recommend that can empower you to minimize the chance of a hostile work environment, and even if one exists, that will help you deal with it quickly and effectively.

If you’d like to talk with someone about your own hostile work environment claim, contact Eisenberg & Baum. We have a group of very experienced employment discrimination attorneys who can help you understand your claim and advise you of your rights under the law.

Know Your Rights

The first step to protection as an employee is knowing your rights under the law. We’ve spent a lot of time on our blog talking about employment discrimination and the idea of the hostile work environment. A “hostile work environment” is a specific type of employment discrimination claim under federal and state law, and it is created when you experience unwelcome conduct that is so severe or pervasive it affects the terms of your employment. We commonly think of a hostile work environment in terms of sexual harassment in which co-workers or supervisors subjecting an employee to repeated unwanted sexual conduct, including inappropriate comments, pictures and touching. However, a hostile work environment can be based on a number of different legally protected characteristics, not just gender.

Harassment at WorkUnder federal law, employees are protected from discrimination based on their race, color, national origin, gender, pregnancy, age, religion, disability, and genetic information. State and local laws in your area can protect you based on additional characteristics. For example, in New York City employers are prohibited from discriminating against an employee on similar grounds as recognized under federal law as well as sexual orientation, marital status, gender identity, arrest and conviction record, military status or service, observance of Sabbath, political activities, unemployment status, and status as a victim of domestic violence. To learn more about hostile work environments, read our prior post on “What Is a Hostile Work Environment.”

Discrimination Policies and Training

One of the most common and easiest things an employer can do to help prevent discrimination in the workplace is to adopt a policy against discrimination and a thorough process for reporting and investigating claims of discrimination, then train employees and management on the subject. If you notice your employer does not have these policies and processes in place or what they do have does not sufficiently address workplace discrimination, we recommend you talk with your employer. A strong set of policies and training can help educate all employees about what is and is not appropriate conduct at work and reduce instances of harassment and discrimination. Having an explicit procedure for reporting and investigating discrimination claims encourages victims to speak up when they have a complaint and can show that the employer takes such complaints seriously and responds with action when needed. When you contribute to a better set of policies and procedures at work, you not only help yourself but your co-workers, managers and employer. Try talking with your supervisor or if you’re uncomfortable talking with your supervisor, try another member of management or a human resources team member.

Confront, Report and Document

If you are already experiencing harassing behavior that is disrupting your ability work, it’s time to take action. If you’re comfortable with the idea, let the harasser or harassers know clearly and directly that you want them to stop what they’re doing. Whether it’s a supervisor who is belittling you because of your age or a group of co-workers who like to share stories about their sexual experiences in the open, let them know that their behavior is making you uncomfortable and you want them to stop. If you are afraid to confront your harasser directly, maybe because they’ve physically threatened you, then we encourage you to talk with your supervisor or human resources contact. Even if you’re not directly affected by harassing conduct at work, if you witness it, say something. This is your chance to help change the culture at your job. By reporting harassing conduct at work, you can protect the victim and everybody else at work, including yourself, from future harassment.

In addition to reporting any instances of harassment, there are other steps you can take at work to protect yourself when you’re in the midst of a hostile work environment. You can start making sure that your story is heard and supported by having co-workers around you when you encounter your harasser. Your harasser might be less bold around other people, and if they’re not, you will at least have witnesses to their conduct. Also, you can begin taking notes of your interactions with your harasser. Make sure you’re as detailed as possible in describing when, where and how your encounters with your harasser happened, and take the notes as close as possible to each event so that your memory is still fresh. These notes can help in your employer’s investigation and in any future legal action you may have to take.

Finally, we don’t recommend retaliating against your harasser. This could cloud your employer’s investigation or a court’s determination of your original claim and potentially subject you to liability. Use the resources you have at work and under the law to report and stop the discriminatory conduct against you.

Contact an Attorney

If you find your employer isn’t appropriately responding to your complaints, contact an attorney. An experienced employment discrimination lawyer can help you get the resolution you need, whether that requires filing a charge with the Equal Employment Opportunity Commission or a lawsuit in federal or state court. A lawyer can help advise you of your legal rights and options as a victim of workplace discrimination. Eisenberg & Baum’s employment discrimination attorneys have decades of experience handling hostile work environment and other employment discrimination claims, and we encourage you to contact us for a free initial consultation. For employment discrimination and retaliation cases, we bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.

Sexual Harassment and Racial Discrimination Lawsuit Against McDonald’s

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Last year, McDonald’s and one of its franchisees faced an employment discrimination lawsuit that may be a sign of things to come. The lawsuit, brought by employees of McDonald’s franchises in Virginia, claimed both the franchisor and the franchisee were liable for alleged race and gender discrimination committed by supervisors at the restaurants. While the case settled, it along with recent labor law developments provide an interesting current look at employment discrimination cases in the fast food franchise business.

We’ll discuss the allegations in the recent discrimination lawsuit against McDonald’s and the changing landscape of franchisor liability for the employment actions of franchisees, specifically in the context of violations of anti-discrimination laws. If you’d like to talk with an attorney about your own employment discrimination claim, please contact Eisenberg & Baum. We have a group of employment discrimination attorneys with years of experience handling discrimination claims.

The Allegations of Employment Discrimination Against McDonald’s

Eleven former employees brought the employment discrimination case against McDonald’s and its franchisee, Soweva Co., in federal court in Virginia. The legal basis for their claim was Title VII of the federal Civil Rights Act of 1964, which prohibits discrimination against employees based on their sex, race, color, national origin, or religion. The allegations in the McDonald’s case included both race and sex discrimination claims.

Racial Discrimination

The former employees in the case were all either African-American or Hispanic. The group alleged they’d been discriminated against on the basis of their race, having been harassed and wrongfully terminated on that basis. Please check out our prior blog posts on harassment and wrongful termination for more information about those types of claims.

The harassing conduct allegedly engaged in by the employees’ supervisors included offensive jokes, racial slurs, and a different disciplinary standard than their white counterparts. The employees alleged that, ultimately, the franchise owner decided to decrease the number of African Americans working at his restaurants and targeted them in a mass termination that impacted mostly African American employees. The employees say that, when asked why they were being fired, the owner explained they “didn’t fit the profile” he wanted.

Sexual Harassment

In addition to their racial discrimination allegations, the former employees claimed that their supervisors had also engaged in activity that constituted sexual harassment. Sexual harassment is a form of gender discrimination prohibited under Title VII. For a broader discussion of what constitutes sexual harassment, you can read our prior blog post on how to identify when you have a sexual harassment claim.

Among other allegations, the former McDonald’s employees claimed that supervisors at their workplace made inappropriate comments about employees’ bodies, sent and showed employees inappropriate pictures, touched female employees on their legs and buttocks, and attempted to solicit sexual activity with employees.

Holding a Franchisor Liable for Employment Discrimination

McDonald’s operates under a franchise business model, meaning that the vast majority of McDonald’s restaurants are not actually owned by McDonald’s USA, the franchisor, but by independent franchisees. Many other fast-food restaurant chains, like Subway, Wendy’s, Jack in the Box and Taco Bell, work under a similar model. For many years, franchisors have seen the franchise model as a way to guard against liability for employment law claims under the argument that the franchisee is truly responsible for employment decisions and matters. While this has been accepted in many labor and employment law cases, there has also been an exception for those situations where the franchisor and franchisee are seen as “joint employers” of an employee. Typically, for a franchisor to be considered a joint employer, they would need to have exercised some direct control over the day-to-day operations of the franchisee.

In the McDonald’s case, the plaintiffs sought to hold both the franchisor, McDonald’s Corp. and McDonald’s USA, and franchisee, Soweva Co., accountable for the alleged discrimination the plaintiffs suffered at work. To bring the McDonald’s corporate entity in, they argued that the company had the right to control operations at all of its restaurants through its franchise agreement and its business manuals. According to the plaintiffs, the McDonald’s corporate entity directs everything from how franchisees spend their advertising dollars to how they manage, train and supervise their employees. McDonald’s manuals also contain corporate policies and processes on discrimination and sexual harassment.

The parties to the McDonald’s lawsuit settled the case before it went to trial and the details of the settlement were not made public, so we won’t know if the plaintiffs’ argument for holding the McDonald’s franchisor entity liable would have been successful. However, recent developments in the area of labor law seem to indicate that the standard for holding franchisors liable as joint employers may be expanding in the favor of employees. In August 2015, the National Labor Relations Board issued a ruling in Browning-Ferris Industries of California, Inc. that created a new standard for the joint employer theory of liability in the context of unfair labor practices. The prior standard required an entity to take actual direct action over a worker to be considered a joint employer, while the new standard expands joint-employer status to entities that have indirect control or an unexercised right of control over a worker.

The ruling in Browning-Ferris did not directly apply to franchisors or to employment discrimination claims, but there is reason to believe that the ruling could be used in those contexts. The NLRB is currently in a fight with McDonald’s over whether it should be responsible for labor violations at independently owned franchises. Also, the Equal Employment Opportunity Commission, the federal agency charged with enforcing federal employment discrimination laws, sided with the NLRB’s position in Browning-Ferris noting that the NLRB’s standards can influence the judicial interpretation of joint employment in the discrimination context. The Browning-Ferris ruling is now being appealed and Congress is considering a new law that would overturn the ruling. Whether
franchisors like McDonald’s will be held increasingly responsible for employment law violations at the franchise level remains to be seen.

Who Should Be Responsible for Your Discrimination Claim?

If you’ve been the victim of discrimination and have questions about who should be responsible and what types of legal claims you can bring, we suggest you to contact an attorney immediately. An experienced employment discrimination attorney can advise you about the merits of your claim and the best way to pursue it. Eisenberg & Baum is ready and able to help you with your discrimination claim, and we encourage you to contact us for a free initial consultation.Though we’re based in New York City, we have attorneys licensed in many states throughout the country and we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we likely can help no matter where you are.