Offensive Behavior

Top 5 Tips: So You Want to Sue Your Boss?

So you want to sue your employer for racial discrimination, sexual harassment, whistleblower retaliation, failure to pay you your last paycheck, what have you. Now what? Here are five tips all clients should keep in mind before they pick up the phone to call a lawyer.
Tip 1: Write it, don’t say it. People think it’s enough to complain, request or report things orally to their employer. They complain about discrimination to HR over the phone. Or they tell their supervisor about a health and safety code violation. Well, what are you going to do when HR or the supervisor denies you ever talked with them? Don’t believe it? Happens all the time. Avoid the “he said, she said” by communicating with your employer by emails or send letters (certified mail, return receipt requested). By doing this, you create a record.
Tip 2: Keep a journal. Don’t rely on memory, write everything down. The names of witnesses, dates, times, places, what was said, documents involved – the more detailed the better. And be professional about it. Don’t write that your boss is a %*&@! in the journal, because the journal could become evidence. Another thing, don’t leave the journal on your desk or in your desk drawer at work where your boss can find it. You might end up fired and your lawsuit dead.
Tip 3: Get witnesses. Emails, memos and letters are one form of key evidence in a lawsuit. Witnesses are the other. When your boss calls you a racial slur, pats you on the rear, or threatens to fire you because you reported him for illegal activity, talk to whoever witnessed it. Confirm whether they saw it. Try to get them on your side. Do this carefully and your case will have just gotten a lot stronger.
Tip 4: Don’t play lawyer. So you went to the internet and learned that “retaliation”, “hostile work environment” and “whistleblowing” are magic words. That doesn’t mean you should go waving those terms around in your emails and conversations at the workplace like your sword and shield. Don’t play lawyer. Chances are, your employer’s lawyer will be better at it than you are and if, as is likely, you get it all wrong, you’re the one who could come off looking like the bully, not the employer. Get a lawyer instead.
Tip 5: Don’t get mad, get even (or turn the other cheek). You’re being treated outrageously by your co-workers, your supervisors or the owners of your company, or maybe all of them. You’re depressed, scared and . . . spitting mad! To quote Al Pacino in Scent of a Woman, you want to take a flamethrower to the place! That’s fine if you want to end up in jail and without a lawsuit. Otherwise, take a deep breath, follow tips 1 to 4, and call an attorney. That momentary lapse where you curse your boss out like a sailor in front of your entire office could mean you no longer have a case.
More tips to come, but if you follow these five, you will be way ahead of the game. And your lawyer will thank you for it.

Joseph Ainley on Kelley v. Conco Companies

Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.

This interesting and recently decided case clarifies the distinction between obnoxious and defensive behavior on the job, which is not actionable, and sexual harassment in the workplace, which is actionable.  The distinctions are subtle and legalistic.  There is no doubt that the plaintiff in this case suffered greatly at the hands of his abuser, and yet he had no remedy under Government Code § 12940 (the Fair Employment and Housing Act).  This is the type of cutting-edge analysis that attorney Joseph Ainley applies to every case based upon developments in the law as they occur.

In Kelley, plaintiff was an apprentice iron worker assigned to a specific job site operated by his employer, Conco.  For reasons unknown to him, plaintiff became the object of hostility and abuse from his supervisor, a man named Seaman.  On one occasion, Seaman told Kelley to move some rebar and not to mix up pieces of different lengths.  Kelley apparently failed in this task and suffered abuse from Seaman, who called him a “bitch” and a “f**cking punk.”  He said Kelley had a “nice ass” and he wanted to “f**k [Kelley] in the ass,” Kelley’s pants “made [his ass] look good,” Kelley “would look good in little girl’s clothes,” he would “f**k the shit out of [Kelley’s ass] …”  The litany of abuse like this in the case was detailed in paragraphs and was shocking in its strangeness and intensity.

Plaintiff brought suit, alleging sexual harassment in violation of Government Code § 12940.  Specifically, Kelley alleged that he was being sexually harassed on the job by his supervisor, Seaman.  The court, while agreeing that Seaman’s conduct was unacceptable, found that there was no cause of action under the Government Code.  First, the court analyzed whether plaintiff had suffered “discrimination” based on sex.  In that regard, the court required plaintiff to show that had he not been a man, he would have not been treated in the same manner.  In this case, the court concluded that although there was harassment, there was no evidence that the harassment was caused by the fact that Kelley was a man.  In other words, there was no evidence that the abuser was abusive to Kelley on the basis of the fact that he was a man rather than a woman.  As the court said: “While Kelley was undoubtedly subjected to grossly offensive comments and conduct, he did not produce evidence which would support a claim that he suffered discrimination in the workplace because of his gender.” Id. at 207.

The court next turned to whether Kelley had suffered “severe and pervasive harassment” in the workplace sufficient to allege a cause of action for sexual harassment.  The court found that the “harassment” was not essential insofar as the comments were intended to be offensive, demeaning and hostile.  The court found that they were not “sexually motivated or otherwise, by Seaman or by any other supervisor.”  In other words, the court was willing to consider the comments made by the plaintiff’s supervisors to be merely offensive, harsh and unpleasant “rough language” which is part and parcel of the rough work environment of an iron worker.  The court went on to explain, rather prissily, that “to establish liability in a FEHA hostile work environment sexual harassment case, a plaintiff must show that [he] was subjected to sexual advances, conduct, or comments that were severe enough or sufficiently pervasive to alter the conditions of [his] employment and create a hostile or abusive work environment.” [citations omitted.]  Here, the court essentially held that plaintiff could not state a claim because the harassment was insufficiently severe and was not “sexually motivated.”  Reading between the lines, the court essentially made a policy judgment.  That is, that no matter how offensive language might be, if it is made by a member of one sex to another and intended as insulting and demeaning rather than as a demand, solicitation or request for sexual favors, the conduct does not rise to the level of sexual harassment for purposes of liability under FEHA.

This is a conservative ruling and appears clearly designed to distinguish unpleasant workplace disputes in which facially sexual insults are exchanged but where the intent is to insult rather than to seek some sexual favor or accommodation.  In a nutshell, the ruling holds that employees may be as rude as they like to one another, so long as the behavior does not constitute a genuine sexual advance.  Given the facts of this case, however, one would imagine that had Kelley been a woman instead of a man, the result would be very different.  It is perhaps only that distinction that prevented Kelley from obtaining a recovery.

Quite frankly, we disagree with the holding of this case.  The language used is clearly sexually charged and displayed what any reasonable psychologist would call homoerotic tendencies on the part of Seaman.  Kelley suffered severe depression as a result of the verbal assault, and it seems odd that the defendant should escape liability based upon the court’s, perhaps outdated, notion that men who state a sexual desire for another man are simply jousting rather than expressing a desire for sex with the victim of the harassment.  Further, the notion that the language and behavior of Seaman did not amount to “severe and pervasive” behavior is remarkable.  The transcript in full is truly shocking in the vulgarity of the language and the use of jailhouse argot.

Nevertheless, this case indicates a continued conservative trend in the law towards limiting employers’ liability based on violations of FEHA.  As the window of liability closes, it is ever more important to frame the case properly to survive challenges such as those made in this case.  At  the law offices of Joseph Ainley and Ainley Law, we pride ourselves in being current with all relevant case law and that we are able to frame cases in such a fashion and not to fall victim to badly reasoned precedent.

Joseph H. Ainley on Harassment

The Law Offices of Joseph H. Ainley provide services to cover all of your employment-related legal needs. The bulk of our practice is devoted to litigation in cases, for example, where the employee has been wrongfully terminated, or an individual or a group of people have been denied overtime benefits. We also offer employment counsel. Frequently, employees face a situation at work which potentially has profound consequences for them, but they are unsure how best to act. In this context, one issue that is repeatedly of concern is where an employee is offered a severance package in exchange for a release of claims that they employee may have against his or her former employer. In this situation, legal counsel can be invaluable in maximizing the amount of any severance package.  Some of the specific areas in which we are pleased to offer services are the following:

Harassment

It is unlawful for an employer to harass an employee on the basis of that employeeís age, race, gender, orientation, or mental or physical disability. Except in the special case of sexual harassment (discussed below), unlawful harassment is unlawful when the conduct rises to such a level that it creates a ìhostile work environmentî for the employee. Thus, for example, somebody who is harassed because of his or her gender may hold the employer liable for such harassment if the actions rise to the level of creating a hostile work environment. There is no set test for this, and the level of harassment necessary to create a cause of action ranges from one or two serious incidents to a multitude of small incidents that, taken together, create a hostile working environment.

Sexual Harassment

This is by far the most common, and there are two types of sexual harassment: (1) Hostile workplace harassment, and (2) quid pro quo sexual harassment. In the first case, as with any other form of harassment, this becomes actionable when the harassment rises to a level that creates a hostile working environment. Again, this can consist of one single event, or a series of relatively minor events. Whether or not the activity rises to the level of ìharassmentî is determined on a case-by-case basis. At Ainley Law, we are expert at determining whether or not any specific set of circumstances rises to the level needed to prevail on a claim of sexual harassment based on hostile work environment.

The second type of sexual harassment, quid pro quo harassment, is harassment in which the employer requires an employee to submit to some form of sexual demand in exchange for an employment-related benefit, including continued employment.

Cases of sexual harassment are highly fact-specific and require a great deal of sensitivity and care in how they are handled. The plaintiff in a sexual harassment lawsuit also enjoys special protections against intrusion into her private life. For example, her prior relationships, history, proclivities, and interests are off limits during discovery, whereas similar questions may be legitimate in other types of cases.