Practice Areas: Sexual Harassment/Discrimination
Sexual Harassment
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment.
Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex. The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee. The victim does not have to be the person harassed but could be anyone affected by the offensive conduct. Unlawful sexual harassment may occur without economic injury to or discharge of the victim. The harasser's conduct must be unwelcome.
It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available. Criminal charges can also be filed against the harasser.
Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.
If you feel you were a victim of sexual harassment, please call us for a confidential consultation.
Discrimination
Employment Discrimination: Overview
Employment Discrimination laws seek to prevent discrimination based on race, sex, religion, national origin, physical disability, and age by employers. There is also a growing body of law preventing or occasionally justifying employment discrimination based on sexual orientation. Discriminatory practices include bias in hiring, promotion, job assignment, termination, compensation, and various types of harassment. The main body of employment discrimination laws is composed of federal and state statutes. The United States Constitution and some state constitutions provide additional protection where the employer is a governmental body or the government has taken significant steps to foster the discriminatory practice of the employer.
The Fifth and Fourteenth Amendments of the United States Constitution limit the power of the federal and state governments to discriminate. The Fifth amendment has an explicit requirement that the federal government not deprive individuals of "life, liberty, or property," without due process of the law. SeeU.S. Const. amend. V. It also contains an implicit guarantee that each person receive equal protection of the laws. The Fourteenth Amendment explicitly prohibits states from violating an individual's rights of due process and equal protection. See U.S. Const. amend. XIV. In the employment context the right of equal protection limits the power of the state and federal governments to discriminate in their employment practices by treating employees, former employees, or job applicants unequally because of membership in a group (such as a race or sex). Due process protection requires that employees have a fair procedural process before they are terminated if the termination is related to a "liberty" (such as the right to free speech) or property interest. State constitutions may also afford protection from employment discrimination.
Discrimination in the private sector is not directly constrained by the Constitution, but has become subject to a growing body of federal and state statutes.
The Equal Pay Act amended the Fair Labor Standards Act in 1963. The Equal Pay Act prohibits paying wages based on sex by employers and unions. It does not prohibit other discriminatory practices bias in hiring. It provides that where workers perform equal work in jobs requiring "equal skill, effort, and responsibility and performed under similar working conditions," they should be provided equal pay. The Fair Labor Standards Act applies to employees engaged in some aspect of interstate commerce or all of an employer's workers if the enterprise is engaged as a whole in a significant amount of interstate commerce.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in many more aspects of the employment relationship. It applies to most employers engaged in interstate commerce with more than 15 employees, labor organizations, and employment agencies. The Act prohibits discrimination based on race, color, religion, sex or national origin. Sex includes pregnancy, childbirth or related medical conditions. It makes it illegal for employers to discriminate in hiring, discharging, compensation, or terms, conditions, and privileges of employment. Employment agencies may not discriminate when hiring or referring applicants. Labor Organizations are also prohibited from basing membership or union classifications on race, color, religion, sex, or national origin.
The Nineteenth Century Civil Rights Acts, amended in 1993, ensure all persons equal rights under the law and outline the damages available to complainants in actions brought under the Civil Rights Act of 1964, Title VII, the American with Disabilities Act of 1990, and the Rehabilitation Act of 1973.
The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating on the basis of age. The prohibited practices are nearly identical to those outlined in Title 7. An employee is protected from discrimination based on age if he or she is over 40. The ADEA contains explicit guidelines for benefit, pension and retirement plans.
The Rehabilitation Act's purpose is to "promote and expand employment opportunities in the public and private sectors for handicapped individuals," through the elimination of discrimination and affirmative action programs. Employers covered by the act include agencies of the federal government and employers receiving federal contracts over $2500 or federal financial assistance. The Department of Labor enforces section 793 of the act which refers to employment under federal contracts. The Department of Justice enforces section 794 of the act which refers to organizations receiving federal assistance. The EEOC enforces the act against federal employees and individual federal agencies promulgate regulation pertaining to the employment of the disabled.
The American with Disabilities Act (ADA) was enacted to eliminate discrimination against those with handicaps. It prohibits discrimination based on a physical or mental handicap by employers engaged in interstate commerce and state governments. The type of discrimination prohibited is broader than that explicitly outlined by Title VII.
The Black Lung Act prohibits discrimination by mine operators against miners who suffer from "black lung" (pneumoconiosis).
The Equal Opportunity Employment Commission (EEOC) interprets and enforces the Equal Payment Act, Age Discrimination in Employment Act, Title VII, Americans With Disabilities Act, and sections of the Rehabilitation Act. The Commission was established by Title VII. Its enforcement provisions are contained in section 2000e-5 of Title 42, and its regulations and guidelines are contained in Title 29 of the Code of Federal Regulations, part 1614.
State statutes also provide extensive protection from employment discrimination. Some laws extend similar protection as provided by the federal acts to employers who are not covered by those statutes. Other statutes provide protection to groups not covered by the federal acts. A number of state statutes provide protection for individuals who are performing civil or family duties outside of their normal employment.
Employment Discrimination: FAQ
What do I do if I think that I am discriminated against?
If you feel you were discriminated against on the basis of race, sex, color, national origin, religion, disability or age, then you may file a charge of discrimination with the Equal Employment Opportunity Commission (305-536-4491) within 300 days, or the Florida Commission on Human Relations (850-488-7082) within 365 days of your employer's discriminatory conduct in order to preserve all of your rights under Federal and Florida Equal Employment Opportunity Laws. If you do not file a charge of discrimination within those time periods then you will waive your right to do so.
What do I do if I am harassed on the job?
If you are being harassed on the job (as a result of race, sex, color, national origin, religion, disability or age) then you must first determine if your employer has a harassment policy. If there is such a policy, you need to follow the procedures set forth in that policy for reporting the harassment. If your employer does not have a policy, or if your employer does not resolve the matter for you, then you may consider filing a charge of discrimination with the Florida Commission on Human Relations or the Equal Employment Opportunity Commission.
When am I entitled to overtime?
The Fair Labor Standards Act requires payment of overtime for all hours worked over 40 in a work week unless the employee is exempt from overtime. You may be exempt from overtime if you are an executive, administrative or professional employee, a computer professional, or an outside sales employee.
If I am terminated, am I entitled to unemployment compensation?
Employees are generally entitled to unemployment benefits unless he or she has voluntarily quit their job without good cause attributable to the employer and if the employee was not discharged or suspended for misconduct connected within the workplace. Misconduct may include reporting to work in an intoxicated state, absenteeism, insubordination, and theft. Poor performance or unsatisfactory conduct may not be misconduct.
If I am disabled, am I protected by the law?
The Americans of Disabilities Act covers employees with employers of 15 or more employees and they may not disqualify individuals with a disability. The ADA disability is defined as a physical or mental impairment that substantially limits one or more major life activities of an individual, or an individual has a record or history of such an impairment, or the employee is regarded by the employer as having such an impairment. Conditions such as cerebral palsy, epilepsy, multiple sclerosis, aids, heart disease, and diabetes may be disabilities.
If I file a claim for workers' compensation and then I am terminated, am I protected?
If you assert a right such as filing a claim for workers' compensation, then an employer may not terminate you simply for filing a claim. An employer may not retaliate against you for asserting a right to which you are entitled (filing a workers' compensation, discrimination complaint, complaining about harassment).
Can I look at my personnel file?
Generally no. If you are employed by a private employer (a non-state or local agency), you have no right to review or copy your personnel file unless your employer consents.
Am I entitled to Family Medical Leave if I get sick or a family member gets sick?
An employee who has worked for an employer for at least 12 months, has worked at least 1250 hours over the last 12 months and works at a location where at least 50 employees are located within 75 miles may receive up to 12 weeks of unpaid leave for the birth of a child or placement for adoption or foster care, to care for an immediate family member with a serious health condition, or the employee is unable to work due to his or her own serious health condition.
If I am terminated and sign a release for a final paycheck, can I then sue my employer?
If you sign a release when you are terminated in exchange for severance pay then you might waive any right you have against your former employer, depending upon he language of the document. The one exception is that if you are over 40 years of age, any release you sign must contain certain specified clauses to be effective.
What happens if the work place is not safe?
The Occupational Safety and Health Act of 1970 (OSHA) requires employers to provide a workplace free from safety and health hazards and comply with standards set by the Occupational Safety and Health Administration. If you feel that your employer has created an unsafe working environment, then you may contact the Occupational Safety and Health Administration.
If you think you may have a potential Labor & Employment Claim, please fill out our Confidential Contract Form to have a member of our staff contact you about your potential case.