Girls Just Wanna Have Fun(damental Workplace Rights)
Practical Advice for Young Professionals
by Elizabeth Bradley
It’s a new era for women in the workplace since the Weinstein story broke. Women have come forward almost daily with disturbing accounts of workplace experiences ranging from inappropriate comments, to harrowing sexual harassment, to outright rape. As Ninth Circuit Court of Appeals Judge Alex Kozinsky’s resignation has shown, no industry is too sacrosanct nor man too revered to be embroiled in a sexual harassment scandal. Never before have women been so encouraged, supported, and empowered to come forward and to hold accountable those who abuse their power and violate the law. Everyday, women bravely continue to do so at great risk to their careers.
Almost simultaneous with this new era of women’s empowerment, meaningful strides have been made in the law in an effort to level the playing field for working women, such as California’s new statutes aimed at remedying wage disparity. Despite this significant progress, neither sexual harassment, retaliation nor gender inequality in the workplace will end anytime soon, particularly as long as women are underrepresented in management and the executive ranks. The legal profession is no exception.
How do we, as women, seize upon this moment in history to work toward ensuring a more safe and fair workplace for ourselves and our current and future female colleagues? The answer likely lies less in the adequacy of the laws designed to protect us, than in how and when we choose to protect and enforce our rights. Becoming knowledgeable about our rights is an important first step. Recognizing and documenting wrongful conduct are also critical steps in protecting our rights.
Reporting is a sensitive issue which must be handled carefully and thoughtfully because the stakes are high and risks to our careers great. Retaliation for reporting or objecting to improper conduct can take many forms, such as unwarranted discipline, falling into disfavor, being ostracized, losing out on raises or promotions, termination, and even being blacklisted in the industry. One would hope this new era will bring with it an unwillingness on the part of employers to retaliate against those who report but, because the risk of retaliation remains, practical considerations should always be in the forefront of our decision-making process as to when, how, and even whether to report. This process necessarily involves a cost-benefit analysis, and a well-planned strategy is helpful where possible, taking into consideration the fairly large sliding scale of inappropriate or tasteless conduct versus illegal or actionable conduct. The more egregious the conduct, the more the question will be when and how to report, not whether to report. The less egregious the conduct, such as subjectively offensive conduct which is arguably objectively benign or in a grey area, the question may be whether to report at all.
Should we have to be concerned about whether we will suffer retaliation for enforcing our rights? No. Is it fair that victims of harassment and discrimination risk being victimized yet again for objecting to mistreatment? No. However, we owe it to ourselves to be pragmatic as long as the risks continue to exist. We also owe it to ourselves, particularly as attorneys, to know our legal rights and responsibilities. There will rarely be easy answers to these types of challenges. If faced with such a dilemma, consider seeking outside advice, such as from a more senior female attorney or an experienced employment lawyer before taking action, including reporting.
The following are practical tips to help you recognize and navigate these types of challenges in the workplace.
KNOW YOUR RIGHTS
There is no law prohibiting a boss or co-worker from being a jerk. Many companies’ culture or policies might be “unfair” or arbitrary, without being illegal. Learning the difference between bad behavior and illegal conduct is an important first step toward protecting your rights. Become familiar with your employer’s policies, including reporting requirements and procedures. The body of law governing illegal harassment and discrimination under Federal and California law is quite extensive, and often times very nuanced, but the following summary is a basic primer.
Discrimination and harassment in the workplace are illegal under Federal law (Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000(e), et seq.) and California law (The Fair Employment and Housing Act (“FEHA”), Cal. Gov’t. Code §12940, et seq.). Protected classes based on gender include sex, pregnancy, sexual orientation, and/or gender identity (one’s internal, deeply felt sense of being male or female), and often age. Retaliation for reporting harassment or discrimination is illegal under Title VII, FEHA, and California Labor Code §98.6 and §1102.5.
Discrimination can be overt or quite subtle. If you feel you are being treated differently than your male counterparts, or being treated differently due to your gender, pregnancy, sexual orientation, gender expression, or gender identity, there may be discrimination at play. Whether conduct qualifies as discrimination or is based on a protected class depends entirely on the facts of each case, including the employer’s motivations. Look out for these types of situations:
o Being paid less than male counterparts for substantially similar work (see Labor Code §1197.5, which prevents use of salary history alone to justify pay disparity);
o Being asked for your salary history in the application process (Labor Code §432.2 prohibits an employer from considering salary history as a factor in determining whether to make an offer or what to offer, unless voluntarily disclosed—be careful not to disclose unless intentional);
o Being held to higher standards than male counterparts;
o Being passed over for promotions;
o Being excluded from advancement opportunities or choice assignments;
o Earning less because you are single or your husband has a high paying job;
o Missing out on opportunities because you are pregnant or have children;
o Being subjected to assumptions of unavailability due to family commitments;
o Receiving unfavorable treatment for taking pregnancy leave;
o Being assigned a heavier workload because you are single;
o Receiving disproportionate discipline in comparison to male counterparts;
o Being subjected to insults, jokes or offhanded comments tied to gender.
Note that harassment and discrimination often go hand in hand, and discrimination is sometimes based on more than one protected class.
Harassment can be based on any protected class, and is not limited to what we typically think of as sexual harassment. Nor must it arise from sexual desire. Classes that can give rise to gender-based discrimination include, but are not limited to, sex, pregnancy, sexual orientation, gender identity, gender expression, and marital status. Harassment consists of subjectively and objectively unwelcome verbal, visual or physical conduct of a harassing nature. It must be severe and pervasive so as to create an abusive work environment.
“Quid Pro Quo” harassment includes explicit or implicit overtures where a supervisor makes a request for sexual favors accompanied by a threatened loss of employment, status or benefits, or a promise of future or continued preference, benefits or added stature.
Hostile Environment harassment includes (1) verbal, visual, and/or physical conduct based on a protected status, (2) which is objectively offensive to the reasonable person, and (3) offends or intimidates the specific complainant, and (4) alters or interferes with working conditions, and (5) is severe or pervasive (consider the degree and frequency). Examples of verbal conduct include locker room talk, sex jokes, jokes or slurs which make fun of protected classes, comments about others’ body parts, persistent invitations (vs. no pressure open invitations), overly personal or intimate questions and comments (vs. pleasantries and general compliments). Examples of visual conduct include leering, suggestive expressions, sexual material, and depictions of nudity. Examples of physical conduct include suggestive gestures, horseplay, hugs and kisses, massages, non-consensual touching, and blocking or impeding movement. Remember that there are both subjective and objective criteria in determining whether conduct constitutes harassment.
Retaliation is where an employee is subjected to an adverse employment action for engaging in a protected activity, asserting a right or complaining about unlawful conduct. Complaining of harassment or discrimination is protected activity. An adverse employment action is anything that materially affects the terms, conditions or privileges of employment. Adverse actions can include reduction in salary or bonus, demotion, decrease in responsibilities, transfer to a less desirable assignment, and unwarranted negative performance evaluations. If you have recently made a claim or reported harassment or discrimination, keep an eye out for signs that may indicate that retaliation is at play, such as sudden changes in the character of your relationship with supervisors or management, falling out of favor, or suddenly being subjected to heightened or unfounded criticism.
BE YOUR OWN ADVOCATE AND AN ACTIVE PARTICIPANT IN PROTECTING YOUR RIGHTS
Honing your communication skills and learning to advocate for yourself early in your career will serve you well. As you progress in your career, you will undoubtedly find a voice and inner strength that may not have come naturally when you started out. Many women who recently went public with allegations of harassment are mature women well into their careers. Many suffered harassment early in their careers, but chose not to come forward sooner, often for fear of retaliation.
Being an advocate for your own professional growth can help to avoid or alleviate actual or potential disparate treatment. Don’t sit and wait for opportunities to be handed to you, especially if you see others being given preferential treatment. Make your goals known to the decision makers; make your voice heard. Ask for opportunities. Take on leadership roles, large or small. Volunteer for committees or to help out on matters outside your wheelhouse to gain new experience. Be a team player by volunteering for less desirable assignments to fill a need. Go above and beyond, and keep a journal of your efforts. Follow up with friendly confirmation emails to document your efforts. This type of self-advocacy can be particularly effective where bias is implicit or unintentional.
When it comes time to negotiate a new job, a promotion or salary increase, have concrete examples of your efforts and merits ready. You will be better equipped to advocate for yourself. Make it more difficult for management in any attempt to justify treating you unequally. Consider asking what the pay range is for your position or the new job you are seeking. Starting in 2018, Labor Code §432.3 requires employers to provide salary ranges for a position upon request by an applicant. The statute is silent, however, as to whether it applies to existing employment.
Be proactive in attempting to curb offensive conduct. The word “confrontation” gets a bum rap. It doesn’t have to be a dirty word, it’s all about tone. If certain conduct tests your personal boundaries, and either constitutes or borders on illegal or inappropriate conduct, tactfully let your boundaries be known. Make an effort to politely communicate your discomfort so that the conduct does not continue or escalate, while being cautious to do so in a way that will not alienate you from your coworkers. Preferably, do this in a non-confrontational manner unless the gravity of the conduct warrants a stronger response. Try to avoid situations where you may need to make difficult decisions to extricate yourself, such as taking meetings in suspicious locations or letting professional and social lines blur, particularly where supervisors or clients are concerned. This will likely be more difficult with supervisors or managers, depending on the nature of the relationship. Trust your instincts. If something doesn’t feel right, it likely isn’t. If you have concerns, seek out a mentor to confide in and ask for advice in how best to communicate your personal boundaries. Odds are, senior women in your office have experienced similar challenges and may have practical advice.
#metoo: PROCEED WITH CAUTION
Ultimately, each woman must make her own decision whether to report misconduct, and whether the benefits of reporting under the particular circumstances outweigh the risks. Be familiar with your employer’s reporting policies. Also be cognizant that though you may risk retaliation if you report misconduct, your failure to follow policy may be used against you if wind up in litigation.
If you believe you are facing discrimination or harassment, immediately begin documenting your experiences, whether or not you intend to report it at that time. Keep a log with dates, times, quotes, and witnesses. Keep a file with emails, notes, and offensive communications such as photographs or screenshots. If you decide to report, tactfully and politely address unfair or improper conduct, with specific examples. Always try to maintain a professional tone. Resist any temptation to be argumentative, threatening or overly inflammatory. Remember that keeping your job and stopping the misconduct are likely your primary objectives, not litigation. Confirm conversations in writing. If possible under the circumstances, be friendly yet firm and concise. Try framing confirmation emails in the context of a thank you note, to avoid the appearance that you are “building a case” (e.g., “Thank you for meeting with me and listening to my concerns about …,” or “I appreciate your assurances that you’ll look into my concerns about …”). If you were told anything disconcerting while reporting, document it in your confirmation email. Consider sending a bcc of any such emails to your personal email address in case your access to firm emails is abruptly cut off.
If you are unclear whether you are being subjected to illegal harassment or discrimination in the workplace, consider seeking legal advice before discussing the issue with your supervisor or management. Many employment lawyers are willing to counsel employees in assessing a situation or crafting a plan to address workplace issues in an effort to avoid retaliation or the need for litigation. There is rarely a one-size-fits-all solution to workplace challenges, and an attorney may be able to help you consider all options. In situations where continued employment is untenable, an employment lawyer can attempt to negotiate a separation agreement without the need for litigation.
Understanding available legal remedies for discrimination, retaliation, and harassment is important but, practically speaking, many women who contemplate reporting misconduct are not looking to sue to obtain legal remedies. We want and deserve safe and fair workplaces. As we become more empowered to voice our concerns and enforce our rights, we will play an important role in improving the workplace both for ourselves and for our colleagues.
Elizabeth Bradley is a partner in the law firm of Rosen Saba, LLP, where she focuses her practice on representing clients in employment, legal malpractice, and business litigation. In addition to being a WLALA member, Ms. Bradley is a member of the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee, and the President’s Advisory Committee on Women in the Legal Profession. Prior to the practice of law, she worked in law office management and human resources.