Articles Posted in Hostile Work Environment

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If you encounter sexual orientation discrimination in the workplace, you may have a legal claim against your employer. Sexual orientation discrimination in the workplace can occur in subtle and overt forms and can occur if you are lesbian, gay, bisexual, pansexual, asexual, or straight. Discrimination is any adverse action you experience at your job because of your real or perceived sexual orientation. Examples include:

  • being passed over for a promotion or other opportunities because of your sexual orientation;
  • receiving unfavorable evaluations because of your sexual orientation;
  • being denied benefits because of your sexual orientation;
  • being harassed, called names, or disciplined because of your sexual orientation; and
  • receiving unwanted sexual advances or contact because of your sexual orientation.

Sexual orientation discrimination also includes unfavorable treatment you experience based on your association with people of a certain sexual orientation. If you are experiencing any of the mistreatment described above, or any other unfair treatment based on your sexual orientation, a Boston employment law attorney can help you protect your rights.

Company Policy

Many companies have policies that prohibit unfavorable treatment as a result of sexual orientation. One of the first steps, if you are being harassed, is to see if your company has such a policy. Step two is to report the treatment to your manager or Human Resources Department. Keep records (such as emails, texts voice mails, etc.) of any interaction you believe was discriminatory. If you don’t have any written records, keep a log of all the interactions you believe are discriminatory. Note the date and time of the interaction, and write down the names of others who might have witnessed it. This information can prove invaluable if you decide to file a lawsuit.

Federal  Law

Although federal law may provide some protection, laws in this area are a bit foggy. The United States Supreme Court in Obergefell v. Hodges recently held that same sex couples have the right to marry and receive all of the benefits of marriage. Outside of marriage, though, federal law currently does not provide explicit protection from discrimination based on sexual orientation the way it does for discrimination based on age, sex, religion, race, natural origin and disability. That being said, Title IX, a federal law which prohibits sex discrimination in the workplace, may also apply to discrimination based on sexual orientation. Complaints under Title IX may be enforced by filing a complaint with the Equal Employment Opportunity Commission (EEOC). Notably, if you work for the federal government, you should also be protected from sexual orientation (and gender identity) discrimination by an Executive Order that President Obama amended in 2014. The law in this area is changing frequently, so it is best to consult a MA employment law attorney about the protections federal laws may provide.

State Law

Even though federal law does not specifically prohibit discrimination on the basis of sexual orientation, more than 20 states do, including Massachusetts. California, Colorado, Connecticut, Delaware, DC, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin have similar laws. If you work in Massachusetts, you may be able to sue your employer in state court for violating anti-discrimination laws. Doing so may result in compensation for harm you suffered. Continue reading

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Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on race or color, sex, national origin and religion. It does not specifically prohibit discrimination based on sexual orientation, however. In fact, in Zarda v. Altitude Express, Inc., the Second Circuit dismissed the plaintiff’s claims of sexual orientation-based discrimination since this type of discrimination is not covered by Title VII. On Monday, however, the Second Circuit reversed that decision, finding that discrimination based on sexual orientation is included under Title VII.

Due to the wording of Title VII, which did not explicitly list sexual orientation as a protected category with regard to workplace discrimination, employees have long been vulnerable to sexuality-based discrimination. To be clear, no federal law actually prohibited discriminatory employment practices against LGBT people. State laws were, and are, a different story. Even though the Equal Employment Opportunity Commission (EEOC) announced that it viewed sexual orientation-based discrimination as a Title VII violation, its interpretations have no authority with regard to federal law.

For years, sexuality or sexual orientation-based discrimination cases have been regularly dismissed. But as times change, workers have increasingly begun filing lawsuits for this type of discrimination. Last year, the Seventh Circuit Court of Appeals made a landmark decision in Hively v. Ivy Tech Community College, finding that sexual orientation discrimination is covered by the sex discrimination provision in Title VII. In the Hively case, the plaintiff “described a situation in which, holding all other things constant and changing only her sex,” the discrimination would not have occurred.

Trump Weighs In

A 2010 discrimination case involving Donald Zarda, a sky-diving instructor from Long Island, was found in favor of Altitude Express, his employer. According to the lawsuit, Mr. Zarda told his female sky-dive partner that he was “100 percent gay.” Her boyfriend complained to Altitude Express, and Zarda was terminated as a result. Zarda then filed his own lawsuit, but the Second Circuit affirmed the original decision. After Zarda’s death in a 2014 sky-diving accident, his appeal was continued by his estate. The Trump Administration even got involved, arguing that the protections of Title VII do not apply to sexual orientation. A MA employment law attorney can help you protect your rights if you’ve been discriminated against at work.

But the Second Circuit overturned its previous ruling in February, finding that sexual orientation discrimination is encompassed by the sex discrimination provision. Although the court admitted that this was likely not the provision’s original intent, deciding to include sexual orientation discrimination follows in line with the decision to expand other aspects of Title VII, such as including sexual harassment.

The Second Circuit’s decision holds that: “Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor.” As such, employment discrimination based on sexual orientation qualifies as sex discrimination “because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”

This decision is welcome news for millions of LGBT workers, but also for anyone who wishes to see an increase in workplace justice and equality. If you are being discriminated against because of your sexual orientation, you don’t need to suffer in silence anymore. A Boston employment law attorney can help you determine how to proceed if you’ve been the victim of workplace discrimination. Continue reading

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If you are being treated differently at work based on your religious beliefs or practices, you may be a victim of religious discrimination. In the United States, individuals are protected – by federal law – against this type of discrimination in the workplace.

It is common for victims of religious discrimination to also be discriminated against for other unlawful reasons, such as race or country of origin. A Muslim immigrant from Iraq, for example, may be discriminated against for his religion, but also due to his dark skin (race) and his Middle Eastern origins (culture).

Which Religions are Protected?

Religion encompasses religious beliefs, practice, and all aspects of observance. For the purpose of workplace discrimination, the religion in question doesn’t need to be traditional, such as Christianity or Judaism. In fact, the individual’s religion can be comprised of entirely unique beliefs, as long as they are meaningful and sincere. A MA employment law attorney can help you protect your rights if you’ve been discriminated against at work due to your religious beliefs.

In most cases, workplace discrimination based on religion falls into one or more of the following categories:

  • Religious preference-based employment decisions
  • Religious preference-based harassment
  • Failure to provide reasonable accommodations for religious practices

Examples of Workplace Religious Discrimination

As with any type of discrimination, religious discrimination can take many forms. Common examples include:

  • Hiring, firing or promoting an individual based on religious faith, or lack thereof. An example of this type of discrimination would be firing an employee because she is an Orthodox Jew and can’t work on Saturdays.
  • Harassing an individual based on their religion. This can take the form of mocking an employee, or asking them to remove religious clothing because it violates the company dress code.
  • Failure to provide necessary accommodations. This the most common type of religious discrimination in the workplace. An example of failure to accommodate occurs when an employee is refused his request to display a religious icon on his desk.

Cases of discrimination based on religion have skyrocketed in recent years. According to the United States Equal Employment Opportunity Commission (EEOC), religion-based claims increased by 41 percent between 1997 and 2015. A Boston workplace discrimination attorney can help you determine how to proceed if you’ve been discriminated against at based on your religion. Continue reading

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Sexual harassment in the workplace is a form of gender discrimination. As such, it is illegal. Discrimination, including sexual harassment, can create an environment that is hostile, intimidating, or offensive. The situation can be even worse when the person doing the harassing is your boss. In the workplace, a supervisor is inherently in a position of power over his or her subordinates. If your boss is making sexual advances toward you, or engaging in any type of sexually-harassing behavior, what should you do?

Although overt sexual advances can be particularly awkward and intimidating, even less obvious conduct can fall under the category of sexual harassment. Some examples of sexual harassment in the workplace include:

  • inappropriate or offensive comments about gender,
  • repeated comments about an individual’s appearance, and
  • inappropriate comments made through email.

For example, if your boss routinely makes comments about the incompetence of women in the workplace, in front of a female co-worker, this may be considered sexual harassment.

When sexual harassment comes in the form of flirtation, repeated requests for dates, or outright sexual advances, the work environment can become quite terrifying for the targeted employee. A Boston employment law attorney can help you recover damages if you’ve been the victim of sexual harassment in the workplace.

Title VII

Fortunately, sexual harassment is prohibited at the federal, state, and local level in MA. Under Title VII of the Civil Rights Act of 1964, employees can sue their employers if they suffer from this type of discrimination. Prior to filing a lawsuit, the employee must file a complaint with the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with investigating such claims. Once the EEOC completes its investigation, the employee may bring a lawsuit if no alternative resolution is reached.

According to the EEOC, “although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).”

Tips for Handling the Situation

If your boss is making sexual advances toward you, you don’t need to suffer in silence. Take the steps below to protect yourself from further discrimination.

  • Save any offensive emails, texts, or voicemails from your supervisor. These could be helpful if you decide to file a claim with the EEOC, or bring a lawsuit.
  • If you are comfortable doing so, ask your boss to stop the offensive conduct. In some cases, he or she may be unaware that the conduct is bothering you.If, however, you feel too uncomfortable – or unsafe – do not address your supervisor directly.
  • Speak to your human resources department if the situation persists. HR should be supportive, and may be able to give you some direction as to how to resolve the problem. Depending on the size of the company, the HR department may open its own investigation. In some cases, however, they are of little to no help.
  • Contact an employment law attorney. Whether you end up filing a claim with the EEOC, bringing a lawsuit, or resolving the situation without such measures, an experienced MA employment law attorney can answer your toughest questions and help you determine how to proceed during this difficult time.

Continue reading

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Employers are required – by federal law – to provide a safe workplace. If you are concerned that your workplace is unsafe or unhealthy, you have rights. In most cases, the first course of action is to report the hazard to your employer. If the employer is unable, or unwilling, to address the issue, you can contact the Occupational Safety and Health Administration (OSHA), the agency responsible for establishing and enforcing workplace safety guidelines, as well as investigating reports of violations.

OSHA protects workers from injuries, illnesses, and generally unsafe or hazardous working conditions. According to OSHA, employers must:

  • provide a safe, healthy workplace,
  • post the OSHA job safety notice somewhere in the workplace,
  • record all injuries, hazardous material exposures, and deaths, and
  • provide any necessary safety training.

Can I Refuse to Work?

Workers have the right to refuse to work if:

  • they reasonably believe that a workplace hazard presents an immediate risk of serious injury or death,
  • their employer fails to fix the condition,
  • there is not enough time to report the condition to OSHA, and
  • no reasonable alternative exists.

In all other cases, workers should first inform their employer of the concern in writing. Keep in mind that employers aren’t usually making the situation unsafe on purpose. In most cases, the negligence is unintentional. Speaking up may be the only thing you need to do to resolve the problem. If that doesn’t work, you may need to talk to an attorney. A Boston work injury lawyer can help you determine how to proceed if you’ve been injured in a workplace accident.

Employer Retaliation

Both OSHA and state laws protect workers who report violations from employer retaliation. Essentially, this means that a worker cannot be demoted or fired, or have their pay reduced, due to having filed a complaint about workplace safety violations. If employer retaliation occurs, the worker may have his or her former position reinstated, and he or she may receive back pay. A MA work injury lawyer can help you recover damages if you’ve been injured in a work-related accident. Continue reading

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According to a lawsuit filed earlier this week, female workers at Boston’s McCormick & Schmick’s seafood restaurant have been routinely subjected to sexual harassment from male co-workers and supervisors. The five women involved in the lawsuit allege that their complaints about ongoing groping and lewd comments were consistently ignored by the company.

The McCormick & Schmick lawsuit is just another example of the routine abuse and harassment faced by low-income workers, especially in the hospitality industry. Many of these women are undocumented immigrants and speak little to no English, which prevents them from coming forward about their abuse. Even if they have legal status and speak English, low-income workers may be hesitant to report harassment for fear of losing their job, and income. For many of these women, the loss of a pay check – however small – would have devastating consequences. As such, they suffer in silence.

Low-Income Workers have Legal Rights

Fabiana Santos, a prep cook at the restaurant, said she endured unwanted touching and lewd comments from a dishwasher.

“The disgusting things that happened to me made me feel dirty,” said Santos, through an interpreter. “And when I got home, I didn’t even want my kids to touch me.” A MA employment law attorney can help you protect your rights if you’ve been discriminated against in the workplace.

Another woman, Marta Romero, says that she felt powerless to stop the groping and harassment she suffered at the hands of a sous chef, who also happened to be her supervisor.

“I want other women to know that whatever type of work they do or who they are, they’re not powerless,” said Romero, through an interpreter. “They are powerful and have legal rights.” A Boston workplace sexual harassment attorney can help you determine how to proceed if you’ve been the victim of lewd or abusive behavior.

McCormick & Schmick’s Denied that Conduct Constituted Sexual Harassment

Despite repeatedly reporting the sexual harassment to the Houston-based restaurant chain, all five women involved in the lawsuit said they were ignored. According to the lawsuit, the company’s human resources department did impose some disciplinary actions against certain employees, but the company denied that the conduct reached the level of sexual harassment.

The five women eventually went to the U.S. Equal Employment Opportunity Commission (EEOC), which ruled in their favor. According to the lawsuit, the EEOC ruled in 2015 that there was cause to believe that McCormick & Schmick’s workers had engaged in sexual harassment. As such, the women were able to proceed with their lawsuit, which was filed on Tuesday in Boston’s Suffolk County Superior Court.

Domestic Workers are Especially Vulnerable

Female workers in the agricultural, hospitality, hotel, and domestic industries have the highest risk of workplace sexual harassment. Domestic workers have the greatest challenge due to the nature of their jobs.

“There is no human resources department,” said Marisa Senteno, the National Domestic Workers Alliance’s enforcement program manager. “You don’t have co-workers, so how are you going to prove that these things are happening?” Continue reading

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Sexual harassment has been a major topic of discussion in recent months. This should be no surprise, considering how widespread the problem has been for decades, centuries, probably since the beginning of time. The modern concept of sexual harassment is relatively new, however, dating from the 1970s onwards. And women’s voices are finally being heard.

Workplace sexual harassment is a violation of human rights and a shockingly common form of sex-based discrimination. Sexual harassment in the workplace often goes unreported as it starts at the top. Regardless, in light of the recent Hollywood scandals, including Harvey Weinstein, Kevin Spacey and Louis C.K., women having started coming forward in greater numbers to report workplace sexual misconduct. Further, the #MeToo campaign has encouraged women to speak out, and new allegations seem to be turning up every day. One of the most recent involves Hall of Fame quarterback, Warren Moon.

The Washington Post’s Craig Whitlock recently reported that a California woman filed a lawsuit against Warren Moon, accusing the ex-football player of sexual harassment. According to Whitlock, Moon “committed sexual battery by grabbing the woman’s crotch” during a trip to Seattle earlier this year.

Moon Drugged His Victim’s Drink

The lawsuit also alleges that Moon drugged 32-year-old Wendy Haskell’s drink and pulled off her bathing suit during an October trip to Mexico. Haskell was hired in July as Moon’s executive assistant. A Boston workplace discrimination attorney can help you determine how to proceed if you’ve been sexually harassed at work.

Unfortunately, women often suffer further from the process of reporting sexual harassment.  In addition to the shame and adherence to cultural norms that frequently prevents women from speaking out, they commonly fear an onslaught of other consequences, such as work degradations, humiliation, and retaliation. Haskell was not “only” a victim of sexual harassment, she was also a victim of those consequences.

According to Haskell’s lawsuit, Sports 1 Marketing – the company she worked for, which was owned by Moon – demoted her when she made superiors aware of Moon’s actions. She alleges that Moon “required her to wear thong underwear and share his bed” when they were together on business trips. This is an egregious form of sexual abuse, and reports of such violations should never result in further punishment of the victim. A MA employment law attorney can help you recover damages if you’ve been the victim of workplace sexual harassment. Continue reading

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According to advocates who help undocumented immigrant workers and low-wage women, the more vulnerable the woman, the worse the sexual harassment tends to be. One recent case in Massachusetts involved a Honduran woman who would be beckoned to a supervisor’s office via the PA system, signaling to her that it was time to perform oral sex on him. Sexual misconduct in the workplace is shockingly common, but it’s often only revealed as a secondary issue when women report other problems, such as theft of wages. “A lot of women are trained that economic issues are real problems and this sexual harassment thing is just extra added discomfort,” said interim co-director for Jobs With Justice, Gillian Mason.

Another issue faced by low-income workers is that they are often working through temp agencies. Refusing advances from their supervisors may prevent their ability to obtain permanent employment, so many suffer through it. During a sexual harassment study conducted by the Massachusetts Coalition for Occupational Safety and Health (MassCOSH), one temp worker said, “The female co-workers that wanted the permanent job through the company, they let him touch them.” A Boston employment law attorney can help you determine how to proceed if you’ve been the victim of workplace sexual harassment.

Don’t Bother Reporting it, “This Company Always Wins.”

Over a one-year period, MassCOSH interviewed a total of 58 low-wage Latina workers in the restaurant, janitorial, factory, and hotel industries. One woman reported feeling like she was in a “prison,” fearing that she wouldn’t be able to support her child if she lost her job. Another woman, who worked at a Somerville manufacturing company, claimed that after refusing her supervisor’s advances, he made her work on a more dangerous machine. She went to a lawyer after burning her hands on the machine, but the lawyer told her to give up because “this company always wins.” So she did. Shortly thereafter, she was laid off.

According to Adrian Ventura, director of the Centro Comunitario de Trabajadores in New Bedford, sexual harassment often occurs in the vans used to transport workers to different job sites. In many cases, the van drivers double as supervisors for temp agencies. Some drivers will drop off attractive, young workers last so they can be alone in the vehicle together. If the woman refuses the driver’s advances, she risks losing her job. A MA employment law attorney can help you protect your rights if you’ve been the victim of workplace sexual harassment.

For many of these women, not speaking English presents another obstacle. Even if the company has established harassment policies and procedures for reporting this type of behavior, without a Spanish translator, many workers don’t know what to do. In the case of Judith Lucas, from Guatemala, a language barrier prevented her from reporting long-standing harassment at a scallop processing facility in New Bedford. She couldn’t quit because she needed the money, and she couldn’t ask for help because her translator was the man who was assaulting her. Continue reading

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Sexual harassment and assault typically involve an imbalance of power: boss and employee, teacher and student, adult and child, police officer and civilian. The person with power takes advantage of the victim’s vulnerability. Very few people are more vulnerable than an undocumented immigrant living in the United States. Most undocumented immigrants have risked everything to be here, and their employers know it. As such, the employer of an undocumented immigrant is automatically put in a position of power. The threat of deportation looms. In far too many cases, employers use this knowledge to sexually harass or assault workers.

Reports of sexual harassment have been flooding the headlines lately, with women coming forward about enduring years of harassment at the hands of their employers. Their stories include everything from bad behavior to outright rape. Many of these women are well-known, high-paid Hollywood actresses and socialites. The response has been overwhelmingly positive. Finally, women are being heard. Something is being done. Progress is being made.

Fear of Retaliation, Job Loss, or Deportation

But low-wage workers, many of them undocumented, and many of them unable to speak English, are not getting the same response to allegations of sexual harassment as their rich, white, Hollywood counterparts. For many of these women, reporting sexual harassment doesn’t seem to be viable option. They simply cannot afford to lose their jobs. And even if they want to report it, many don’t know how, or they fear that calling attention to themselves will result in deportation. A MA employment law attorney can help you protect your rights if you’ve been the victim of workplace sexual harassment.

One woman in Boston – an undocumented immigrant – was continuously raped by her boss, who threatened to report her to immigration authorities if she ever told anyone. Another woman, who was working at a bread company in Charlestown, refused her supervisor’s offer to go home with him. In response, he cut her hours.

In 2015, Jena Benson started working at a Boston-area Dunkin’ Donuts. She says that her shift supervisor would always greet her with a hug, which didn’t bother her too much. But on one particular occasion, the hug lasted too long and ended with the supervisor squeezing her buttocks. Continue reading

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Barry Coleman was hired as HR director at Netflix in early 2016. The streaming giant offered Coleman the job after seeing his presentation on doing business in China, in 2015. Shortly after receiving the offer, Coleman learned that his son had been murdered. Distraught over the tragic loss of his son, Coleman suffered from severe depression. But Netflix maintained their offer of a $500,000 annual salary to be the director of employee services.

Coleman alleges that his recruiter, Barbie Graver, former VP of talent at Netflix, said that Netflix would accommodate his situation: “If you work at half your normal speed for the first six months, I’m okay with that.” However, Coleman says that this special treatment was quickly replaced with harassment. He claims to have been ostracized for not working the “Netflix Way,” and for being disengaged. But that wasn’t the worst of it.

Coleman claims that a male superior began making inappropriate advances in April 2016. He initially asked Coleman to join him for a rendezvous with another male business exec. Coleman politely declined the offer, but the invitations didn’t stop. As stated in the complaint filed in Los Angeles Superior Court: “Being heterosexual, [Coleman] was uncomfortable with [the superior’s] advances and attempted to keep some distance so as not to offend his superior. However, the invitations to go out continued.”

Not “Netflix Enough”

Then came the gossiping. According to Coleman, the superior began talking about him with other employees, saying that Coleman wasn’t “Netflix enough,” and calling him arrogant. When he brought the issue to Graver’s attention, not only did she not initiate an investigation, she claimed to be “cool” with this type of behavior. A MA employment law attorney can help you determine how to proceed if you’ve been the victim of workplace sexual harassment.

The complaint went on to say that: “During [Coleman’s] employment, Ms. Graver discussed her handling of a prior sexual harassment claim at Netflix. She told [Coleman] that the accused employee had a history of making inappropriate comments and had been warned on numerous occasions. Ms. Graver also told [Coleman] that many Netflix executives would make inappropriate sexual comments and that [she] was ‘cool’ with it, but understood that others may not be. Ms. Graver, in communicating these and other examples of Netflix unwritten policy of tolerating harassment and discrimination, made it clear to [Coleman] that he should not be ‘over-sensitive’ even when he was being harassed by his superior.”

Apparently the situation only continued to get worse until Graver took a new job. According to Coleman, Graver’s replacement did not wish to accommodate his continued psychological needs from the death of his son. As such, his employment was terminated in May 2016. Netflix holds that Coleman’s termination was based on poor performance. The company claims that he was rarely in the office, and that he was often condescending to his subordinates. Continue reading

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