sexual harassment lawyers

PIP then RIF – A Workplace Sexual Harassment Case

Ginger Pung began working for Regus Management Group in 1991, continuing to receive consistent positive reviews for her position as General Manager. Everything changed sometime in 2010-2011 when Area Director Scott Ravenscroft became her direct supervisor. Pung states that he pursued her, and eventually she succumbed to his advances. In 2012, the pair began a consensual sexual relationship. This fact alone did not constitute a case of workplace sexual harassment.

All was well until Spring of 2014 when Pung told Ravenscroft that she wanted to end the relationship. She states that Ravenscroft showed up at her house a few times, in attempts to re-initiate the relationship, but she refused.

After it became clear that their relationship was over, Pung states that Ravenscroft became “very controlling” at work, and his overall demeanor towards her changed. On June 4th 2014, the pair had a meeting where Ravenscroft threatened to put her on a “coaching plan”, allegedly because her “numbers were lacking”. A few days later on June 9th, Pung reported her prior relationship to an HR representative and made a formal complaint about the behavior of Ravenscroft. She explained that she had previously seen Regus use “coaching plans” as a tactic leading to the termination of employees, and she felt she was specifically being targeted by Ravenscroft due to her ending the relationship. On June 11th, she was interviewed over the phone by the HR representative, and made the complaint that his behavior was “borderline harassment”. Later that same day, Pung sent an email to the HR representative stating, “To be clear, Regus is now on record that there was a sexual relationship between my boss and I that I terminated. As a result, it is my opinion that I am being retaliated against by my coaching leading to termination.”

On June 23rd, HR concluded their investigation and stated they were “unable to substantiate whether there had been a sexual relationship between the two” but did find that his behavior had “created an appearance of improper conduct”. As a result, Ravenscroft was given a warning and told that if his behavior continued, he would be terminated. While Ravenscroft was to continue overseeing Pung for day to day matters, the responsibility of evaluating her performance was transferred to the Regional Vice President, Jeff Bowron.

After this change, Pung made another complaint to HR for “failing to prevent further harassment”, due to her still reporting to Ravenscroft on a daily basis. She testified that after this additional complaint, his behavior towards her deteriorated even further and she wasn’t the only one who noticed it. Allegedly, other co-workers stated that he was “making harsh and demeaning comments to [her] in emails and calling her questions ‘stupid’ during conference calls”.

Pung later provided evidence that on August 25th, Ravenscroft attempted to deliver a Corrective Action Record to her. The CAR was based on an “asserted drop in sales in June and July 2014. Despite a copy bring produced and shown to Ravenscroft, he testified that he “couldn’t recall the document or discussing her performance [that] August”.

Business seemed to continue as usual, until December. Pung was planning a party for clients, when she reached out to Ravenscroft via email and asked if there was a specific company guideline or formula to determine the budget for one of these parties. He replied and said that while there was no company issued guideline for budget, she should keep her party under $250 total. Ultimately, Pung spent about $560 on the party. Ravenscroft “thought this was expensive”, and reported the information to Bowron. When Bowron approached Pung about the spending, she told him that she didn’t feel the $250 was appropriate for the size of the party (about 100 people were expected to attend), nor did she think she had to follow this budget as it wasn’t supported by any company policy. She argued that “guidelines for this type of client spending were neither enforced nor generally known, and that $150 of the $560 spent was for poinsettias for the lobby”.

The following month, Bowron decided to place Pung on a Performance Improvement Plan due to the holiday overspending. Shortly after, the company implemented a Reduction in Force on February 2nd. Pung was terminated as part of the RIF. After the separation, Pung filed a lawsuit under Title VII and the Minnesota Human Rights Act for sexual harassment and retaliation.

She argued that her termination was the direct result of the unfair holiday budget imposed upon her by Ravenscroft, who did not hold anyone else to this standard. She was not aware of anyone else in the company being written up or otherwise punished for spending over any given amount, and additionally, she had thrown similar parties in the past without any repercussions.

Despite her hostile work environment claim being recently dismissed on December 21st, 2017, the rest of Pung’s claims have survived Summary Judgement and may continue to trial.

 

Sources:

http://www.employmentlawdaily.com/index.php/news/employee-pip-then-rif-after-ending-consensual-affair-advances-quid-pro-quo-harassment-claim/

http://hr.cch.com/ELD/PungRegus122117.pdf

pregnancy discrimination lawyers

“Can My Boss Fire Me Because I’m Pregnant?” and Other Pregnancy Discrimination Concerns

Kiyoko Rubio was assigned to the Hyatt House Hotel in February, 2016. She worked as a room attendant without incident until June of that year, when she was told she was being promoted to a supervisory role. Rubio states that “moments later”, she notified her supervisors that were present at the meeting that she was pregnant. Only six days later, she claims she was terminated. She filed a lawsuit in August of this year alleging pregnancy discrimination, and the case is still ongoing.

The scenario is one that occurs more than you would imagine, and also goes unreported more than you would imagine. A woman notifies her employers that she is pregnant, and suddenly she has “performance problems” that were never mentioned before. Perhaps she is placed on a Performance Improvement Plan or given write-ups for unsubstantial reasons. Then, seemingly out of nowhere, she is terminated.

There are other signs that suggest pregnancy discrimination in the workplace, which may include but are not limited to:

  • Failure of the employer to provide time or a location to pump breast milk
  • Failure to accommodate time off for doctor’s appointments
  • Sudden termination in proximity to taking/requesting maternity leave
  • Failure to honor work restrictions placed by a doctor

So why are the employers committing discrimination seeming to go unscathed for their actions? It typically comes down to a few main reasons.

Many Women Fear Retaliation and/or Lasting Career Damage

Those who are still employed fear termination, those who have already been terminated fear that their names will be dragged through the mud with prospective employers.

However, there are a few things to consider if you fall into this category. The first being that both parties in most cases make every effort to resolve the dispute before a lawsuit is filed, so there is no public record of the incident. The second thing to consider is that employers hate being sued just as much as employees hate having to initiate legal action – they have a reputation at risk as well and typically try to avoid negative publicity at all costs. Finally, retaliation for initiating a case could result in additional litigation against the employer.

The Misconception that “At-Will” Means You Have No Recourse

                While “at-will” employment leaves little room for wrongful termination in many common scenarios for disgruntled employees (i.e. the boss just didn’t like me for some reason), there are exemptions to this rule. Discrimination against a protected class (pregnancy discrimination included) would be one of them.

Being Discouraged by Lack of Direct Evidence (Proof)

                As with most types of discrimination lawsuits, pregnancy discrimination is rarely obvious. Sure, it’s possible for an employer to blatantly say that pregnant women don’t belong in the workplace. There are even some that may be foolish enough to put this in writing. But the reality is, 99.99% of cases do not have this component. Instead, attorneys work to prove the pregnancy discrimination using other case facts which arrive at the same conclusion. These facts may include your work/performance history prior to the pregnancy, disputing the phony reasoning for termination given by the employer, or showing that similarly situated employees have experienced the same scenario. One advantage to a pregnancy discrimination case over other types of discrimination is that it eliminates a challenging factor – pregnancy itself is not always obvious. While other traits can be apparent at the time of hire (such as race or gender), pregnancy is not always present or visible.
So, What Now?

The bottom line in all of this – treatment towards pregnant women in the workplace will never change without companies being held accountable. The only way that companies will be held accountable, is if people come forward and take a stand against this behavior. Start by documenting any negative behavior exhibited towards you after your pregnancy is made known – save emails, write down comments and who made them, ask for copies of write-ups or disciplinary actions. Then, present your information to an employment attorney, namely one that specializes in employment matters.

At Aegis Law Firm, we only represent employees against their employers, and specialize in certain case types within that scope. Pregnancy discrimination is one of them. Visit our pregnancy discrimination page to learn more

 

Sources:

https://www.huffingtonpost.com/entry/white-collar-women-dont-s_b_8100128.html

http://www.employmentlawdaily.com/index.php/news/recently-promoted-hotel-worker-who-lost-job-six-days-after-reporting-pregnancy-advances-suit/

http://hr.cch.com/ELD/RubioHyatt110817.pdf

Disability Discrimination

California Disability Discrimination Law

The governing body of Federal law regarding California disability discrimination is the Americans with Disabilities Act (ADA). The ADA is a minimum standard, which means that individual states are able to further adjust or change their individual laws regarding disability. California disability discrimination law is unique because it takes a much broader approach to the word “disability.” This means that California recognizes a lot more illnesses, injuries, conditions, and diseases as qualifying for disability status than Federal law.

California law states describes a disability as a condition that limits one or more major life activities. Because working is considered a major life activity, any condition that affects an individual’s ability to work may be considered a disability under California law. The California Fair Employment and Housing Act (FEHA) recognizes individuals as “disabled” if they have a physical or mental condition that limits one or more major life activities, or they are incorrectly treated as having a disability, regardless of whether or not they actually have an impairment. There are three categories of disabilities: physical disabilities, mental disabilities, and medical conditions. Physical disabilities include physiological disease, disorders, conditions, and cosmetic disfigurement or anatomical loss that affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine systems. Mental disabilities may include conditions such as mental retardation, organic brain syndrome, emotional or mental illness, certain learning disabilities, or other mental or psychological disorder or conditions that require special education or related services.
California disability law is not concerned with an individual’s ability to perform alternate jobs; they only need to be unable to perform the regular duties of the particular job they are pursuing. Furthermore, California law makes this determination without looking at mitigating factors like medication, assistive devices, reasonable accommodation, etc. An example of a mitigating factor would be the use of glasses to correct one’s vision. Even though an individual can correct their vision to near perfect with glasses, the law would still consider the bad vision a disability, as they would not be able to see properly without glasses as the mitigating factor. FEHA also ignores mitigating factors when determining whether a condition is a disability. This creates a system that works in favor of employees.

There are some conditions, however, that do not count as disabilities. These are sexual behavior disorders including but not limited to pedophilia, exhibitionism, or voyeurism. Also not covered are compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from illegal drugs.

Another key aspect of California disability discrimination law is the interactive process between employers and employees. The Fair Employment and Housing Commission focuses their evaluation of disability cases on whether the employer provided or attempted to provide the disabled employee with a reasonable accommodation. The interactive process is an open line of communication between employer and employee, where the parties work together to develop assistive measures for best accommodating an employee’s disability. The result is called a reasonable accommodation, which enables a disabled employee to perform the essential functions of the job. In order to qualify as a proper accommodation, the FEHA mentions that any adjustment made must be effective in overcoming the limitation. This accommodation could come in the form of time taken off to see a doctor, more frequent breaks, extra time to complete tasks, etc. It is important to keep in mind that the FEHA does not expect disabled employees to be accommodated without regard for the burden placed on an employer. Instead, the FEHA uses an undue hardship standard, which is considered whenever there is a mention of a reasonable accommodation.

View more information about disability discrimination and how our lawyers can help – http://www.aegislawfirm.com/ca-employment-law-practice-areas/disability-discrimination/

Discrimination

Ways To Uncover And Prove Wrongful Termination

Being terminated from a job has to be one of the hardest things that can happen in a person’s career. It’s hard under any circumstances, but when an employee feels that they have been wrongfully terminated, it’s even worse. Unless blatant, wrongful termination is difficult to prove and requires the employee to document as much as possible and seek effective legal representation from experienced attorneys.

After termination, the first thing that should happen is a full and honest evaluation with the attorneys at Aegis Law Firm. A terminated employee will feel hurt, shocked, scared, and perhaps worst of all, inadequate. Let’s be honest. No one thinks they have been terminated for cause, even if they know they have. An employee’s first reaction is usually to get angry at the firm or boss who terminated them and look for blame. It is from this mindset that an employee may rush to a determination that it was a case of wrongful termination. This is why a thoughtful and thorough evaluation is important.

For the employee who feels strongly that they have been wrongfully terminated, the post job evaluation will involve a review of the issues faced during employment, and that employee will most likely have already started building a case through documentation. In many cases, wrongful termination begins long before the employee is let go. Employee may notice a change in attitude from a boss after making a complaint about an actual or perceived illegal activity. This type of wrongful termination is called retaliation and can be a case. Another type of wrongful termination is due to discrimination. One example of discrimination is if an employee is being pushed out due to their sex, race or sexual orientation. A strong signal of wrongful termination may be positive reviews up to the termination. For this reason keeping any performance reviews, emails, or other correspondence is valuable.

Something employees often overlook is understanding the legal and regulatory structure of the cities and states they live in. Most states are “at will”, which allows an employer to terminate workers without giving them a reason why. Understanding the laws and regulations that are in place in the jurisdiction you live in will provide you with valuable knowledge from which to make a good decision.

During the termination an employee may want to ask for the reason why they are being let go. They should take physical or at the very least mental notes, and write down their memories as soon as they can after the meeting. Many employers will not give a specific reason in these termination meetings. Still, sometimes, an employer may discuss the issues that led to termination. In these cases, an employee should listen carefully and see if things make sense. For example, the employer may say that economic conditions led to job cuts. In that case, it should be fairly easy for the employee to determine whether or not that is the truth. How many other employees were let go? Is the national or local economy in a slow down or recession? Has the work at this particular company slowed down? Has there been internal talk of a drop off in revenue or a loss? If it’s a public company that information is readily available.

Finally, use notes and documentation to determine if there was any hint of discriminatory or retaliation behavior prior to termination. If a terminated employee can make the case for discrimination or retaliation, the termination may have been a wrongful one.

In all cases of wrongful termination, victims need to seek professional legal advice and if it is determined that they have a case, move forward to get redress. If you would like a free consultation with a wrongful termination attorney visit our free case evaluation page – http://www.aegislawfirm.com/free-case-evaluation/.

Japanese Employee Dies from Exhaustion – How ‘Salaryman’ Culture Affects the Workforce

Japanese Employee Dies from Exhaustion – How ‘Salaryman’ Culture Affects the Workforce

The circumstances surrounding the death of 31 year old Miwa Sado have just been made public, though she passed away in 2013. Sado was a political reporter, and an overworked one at that – which it has now been revealed was the cause of her death by heart failure. NHK (Sado’s former employer) reported that she had worked about 159 hours of overtime in the month before her death. This means that she was working in just one week what most full time employees clock in a full (two week) pay period.

Stories such as Sado’s are not unfamiliar to Japanese culture – they even have a special term for it, “karoshi” which translates to “death by overwork”. The term was originally coined in the 1970s as Japan’s economy boomed. Labor lawyers and civil rights groups have been pressing for legislative change since the 1980s, but the trend has continued in spite of this.

In December 2015, a similar tragedy took place. Matsuri Takashi, a 24 year old employee of Dentsu, an advertising agency, jumped to her death from the company dormitory. “Ms. Takashi’s death was caused by serious depression triggered by overwork and harassment,” Hiroshi Kawahito, a lawyer representing her case, told CNN Money. In the month leading to her death, Takashi clocked about 105 hours of overtime, according to investigators. After concluding its investigation, Dentsu announced that they would be capping overtime hours to a maximum of 65 per month.

But how do work hours measure up across different countries? According to the International Labour Organization, Americans work an average of 137 hours more per year than Japanese workers. The United States is arguably the most overworked developed nation in the world – and it comes down to more than just hours worked per week.

  • The United States is the only industrialized country which has no legally required annual leave program – even Japanese workers are required to receive 10 days off per year
  • The United States is not one of the 134 countries which sets a limit on maximum hours worked per week
  • There is no federal law requiring paid sick days in the United States
  • The U.S. is the only country in the Americas without paid parental leave (maternal or paternal) to care for/bond with new children – the average in most other countries is 12 weeks of paid leave and 20 weeks of paid leave throughout Europe.

 

Sources:

https://20somethingfinance.com/american-hours-worked-productivity-vacation/

https://www.usatoday.com/story/news/world/2017/10/06/japan-struggles-karoshi-death-overwork-after-deaths-2-young-women/738915001/

http://money.cnn.com/2017/10/05/news/japan-work-overwork-woman-dies-karoshi/index.html