Sexual Harassment Is Not Always Clear

Los Angeles, CA (Law Firm Newswire) June 21, 2019 – In the wake of the #MeToo and #TimesUp campaigns, sexual harassment and misconduct in the workplace has been a primetime topic more than ever before. Besides uncovering the enormity of the issue, these viral hashtags and the movement they represent have also started a national conversation about what constitutes sexual harassment and what does not. Most people know that there is a line that should not be crossed; however, where that line is depends on who is asked.

Data from the Equal Employment Opportunity Commission (EEOC) shows that between 25 and 85 percent of women report having experienced sexual harassment sometime in their careers. Why the huge range in those figures? That is because sexual harassment is not always clear, and it very often goes unchecked.

“When it comes to your job, you have the right to work in an environment that is free from abuse and harassment. It can be hard to tell what sexual harassment is,” said Betsy Havens, executive director of Los Angeles employment law firm Strong Advocates. “Complicated emotions may further obscure a situation. However, if you feel uncomfortable with something that is happening, that is a good indicator that something is amiss.”

There are two categories of sexual harassment, quid pro quo and hostile work environment, and they are both illegal. Quid pro quo means “this for that” and is a proposition for sexual favors in exchange for a benefit. For example, an employer suggesting that in order to be promoted and get a pay raise an employee would need to perform sexual acts with them is definite sexual harassment. This can be a onetime occurrence.

The lines start to blur around a hostile work environment claim. What makes a hostile work environment is open to interpretation but the basis of it is behavior that is unwanted and based on sex, gender or sexuality. The acts must be persistent too; a hostile work environment claim would not be based on a singular incident.

Sexual harassment takes many forms, and some may be surprising. Recently, presidential candidate and former Vice President Joe Biden has been in the news for hugging and touching female associates and acquaintances too much. Although he is not accused of outright indecent touch such as fondling, his behavior could still be considered harassment if it were persistent enough. For more examples of surprising types of sexual harassment see Three Types of Sexual Harassment That Might Surprise You.

Questioning whether sexual harassment is occurring at work, visit Strong Advocates here for free resources on sexual harassment.

Supreme Court to Decide Important Employment Discrimination Procedure Case

Austin Oil and Gas Attorney, Gregory D. Jordan

Austin Oil and Gas Attorney, Gregory D. Jordan

Austin, TX (Law Firm Newswire) February 26, 2019 – The United States Supreme Court has agreed to hear an appeal in an employment discrimination Title VII case. In a rare move, the Court is accepting the case to address a procedural issue with filing Title VII cases. Title VII is the Federal law that prohibits employment discrimination based upon someone’s sex, race, religion, color and national origin.

The case is Fort Bend County v. Davis. In the case, Lois Davis alleged she was wrongfully fired because she reported that her supervisor engaged in sexual harassment and sexually assaulted her. She initiated the matter by filing a claim with the Texas Workforce Commission who, after an investigation, gave Davis permission to file a lawsuit. In filing the lawsuit, Davis claimed retaliation due to her sex as well as a religious discrimination claim because she claims she was fired for not working on a Sunday when she went to church instead.

The problem arose because she did not bring the religious discrimination claim in front of the Texas Workforce Commission. Gregory D. Jordan, an employment attorney with the Law Offices of Gregory D. Jordan in Austin, Texas, who is not involved in the case, commented, “It is not uncommon for an individual filing a complaint with the Texas Workforce Commission or the EEOC to be less than thorough. That can lead to serious problems.”

Fort Bend argued that the religious discrimination claim should be dismissed because Davis failed to exhaust all of her administrative remedies before filing suit, as required by Title VII. Davis argued that the exhaustion requirement is actually a “waivable” requirement, and is not a “jurisdictional” one, and in this case, Fort Bend did not raise the issue until five years after suit was filed.

The case was appealed to the United States Court of Appeals for the Fifth Circuit. That court found the exhaustion requirement is waivable. The appellate court reasoned that Congress, when drafting the legislation, made no mention of whether the exhaustion requirement is jurisdictional, but it could have. Therefore, this requirement could be waived by an employer.

Fort Bend filed a petition for review at the United States Supreme Court, arguing that the exhaustion of remedies requirement is clearly stated in the statute and is stated in language that is “jurisdictional” in nature, similar to other statutes that the Court has previously deemed jurisdictional. The Supreme Court has accepted the case and will hear arguments in the next term.

Gregory D. Jordan has advised that “in order to avoid the situation presented in the Fort Bend County v. Davis suit, any person considering filing a charge with the TWC or EEOC should first consult a lawyer.”

The case is Fort Bend v. Davis, No. 18-525.