Several months ago the New York Times published an article on why the #MeToo phenomenon has become one of the most important movements in the employment law arena.1 Journalist Susan Chira explained the results of a national online survey reporting that an astounding 81% of women and 43% of men had experienced some form of sexual harassment or assault in their lifetimes—including at home, and in their community or workplace. No other survey had reported numbers so high, suggesting that this type of conduct has been under-reported for years. In another survey conducted by the CDC, researchers noted that nearly 1 in 10 respondents reported being sexually harassed in the workplace within the past 12 months—though women, multi-racial individuals and divorced or separated individuals were significantly more likely to say they’d experienced such discrimination.2
Sexual Harassment/Assault
Number One: Basics about Gender Discrimination
Employment in Minnesota is at-will, unless you are in a union or have an employment contract. What this means is that your employer can terminate you at any time, for any reason, even if that reason is unfair or untrue.
However, your employer cannot terminate you for an illegal reason. Examples of illegal reasons to terminate a woman include: because she is a woman, or because she gets pregnant or has children to care for. Of course, employers will hardly ever come out and say that this is the reason they’re terminating someone. But it can often be deduced from all of the circumstances that the true reason for the termination is an illegal one. For example, a woman who has a strong performance history at her job tells her boss she’s pregnant. Suddenly, her boss, who previously only had praise for her work, becomes hyper-critical, and starts writing her up for small, vague, or non-existent “performance problems,” and then terminates her within weeks of her disclosing her pregnancy. This is considered evidence of pregnancy discrimination, and could potentially form the basis for a lawsuit. If you believe you are being discriminated against at work because of your sex, pregnancy, or another illegal reason, it’s best to report that discrimination to a supervisor or Human Resources employee, in writing, to document your concerns. If that doesn’t resolve your situation, consulting with an attorney can provide additional options.
I vividly remember about a year ago when the sex tape of Donald Trump was released and the world began discussing whether or not the conduct was sufficiently egregious to sink his run for the presidency.The news media covered the story for weeks, with journalists and pundits opining on the propriety of the underlying conduct- as if there was any question about the answer. Some people, including female supporters of Trump, considered it merely “locker room” talk. Others expressed their disgust that women would be so demeaned and that someone running for the presidency would ever engage in such salacious behavior. Although Trump did not actually make his repulsive comment directly to the woman, he used his position of unequal power to get what he wanted without any consideration for the woman’s physical or mental well-being.
In the United States, paid sick leave is offered to only half of the full-time workforce. Unfortunately, access to paid sick leave is greatly diminished if you are a low-wage earner. A recent study shows that seven out of ten low-wage workers do not have paid sick time available. For many low-to-medium wage workers, the decision to take time off work to recover from an illness or to take care of a family member is a choice between their health and financial security.
If you’ve reported your co-worker’s unwanted advances to your employer and been ignored, or worse yet, terminated from your position, there is good news for you out of New York. The federal Second Circuit Court of Appeals adopted an expansive standard for employer liability that could make it easier for employees to prove discrimination or retaliation when they’re fired because of a co-worker’s conduct. Historically, courts have been reluctant to hold companies accountable for the conduct of their lower-level workers. But in a recent decision (Vasquez v. Empress Ambulance Service, Inc.), the Second Circuit Court of Appeals held that the company may face liability if its negligence played a role in the firing.
Inappropriate conduct, ignored complaints, and wrongful termination, create the case for change:
The Plaintiff, Andrea Vasquez, worked for Empress Ambulance Service, Inc. as an emergency medical technician. In one twenty-four hour period, Vasquez faced unwelcome sexual advances from a co-worker, complained about that conduct to her supervisor, and was terminated.
Whether or not you were aware of it, Minnesota recently took another giant leap forward in protecting its employees from unfair discrimination in the workplace. On Mother’s Day 2014, Governor Dayton signed into law the Women’s Economic Security Act. While the title suggests that the act’s focus is equal pay for women, it actually provides a broad range of new protections for all Minnesotans.
Familial Status as a Protected Class
One effect of the act is that the Minnesota Human Rights Act is amended to include familial status as a protected class. This means that an employer cannot take adverse employment action against an individual on the basis of them being a parent, guardian, or designee, of a child who lives with them. It also means that a person cannot be punished for being pregnant or securing custody of anybody under 18.
You start a new job and everything is going great. Your coworkers are welcoming and your boss is particularly friendly. It may seem innocent at first. A compliment about your appearance, a comment about what you’re wearing, a pet name. But the frequency starts to make you uncomfortable. Your boss starts asking about your love life and sexual preferences. Soon the anxiety from dealing with constant unwanted attention makes you dread going to work and you wonder if there is anything you can do.
In Minnesota, you have a right to work in an environment free from sexual harassment, which includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature. It doesn’t matter whether the perpetrator is male or female, or is your boss, coworker, subordinate, or president of the company; this type of behavior is illegal under the Minnesota Human Rights Act and Title VII of the Civil Rights Act if it substantially interferes with your work environment.
A female police officer recently filed a complaint with the Equal Employment Opportunity Commission after enduring about four years of sexual harassment from her boss in the internal affairs bureau.
The woman says that she was the victim of unwanted sexual advances, coercion, sexual harassment, and a range of other reprehensible conduct that would be objectionable even if it wasn’t happening in the workplace.
A franchise owning company of 25 McDonald’s restaurants was fined $1 million in a lawsuit brought by the Equal Employment Opportunity Commission following an investigation of sexual harassment complaints at one of its Midwest locations.
The EEOC responded to reports of sexual comments, kissing, and other inappropriate touching forced upon female employees by their male coworkers. The EEOC says that the franchise owner knew about the sexual harassment and not only failed to act to stop it, but retaliated against female employees who complained and permitting male employees to continue the behavior.
An experienced and well-regarded security official who has worked with the NBA and the Olympic Basketball team for many years has filed a lawsuit against the women’s team coach. She says that the coach made unwanted sexual advances towards her while they were traveling with a team in Russia in 2009. She refused his advances and said that immediately afterwards he displayed hostility towards her and spoke poorly of her to the team.
The woman has worked for the USA Basketball team for the past two Summer Olympic games in Athens and Beijing and had planned to work on the London games this year. In a conference call with league officials she learned that the coach had instructed the league that she should not work with his team.