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Bay Area Employment Law Blog

New legislation could strengthen rights for older workers

Workers in California may be familiar with the Age Discrimination in Employment Act (ADEA). The legislation aims to protect workers over 40 from being adversely impacted at work because of their age. However, a recent AARP study found that ageism in the workplace is still a significant problem. The report states that most employers don't emphasize avoiding discrimination based on age because laws protecting older workers are relatively weak.

There are many ways that companies may subtly discriminate against older workers. For instance, they may require that those who are applying for open positions have experience using digital platforms. They might also have mandatory retirement ages or have other policies that favor younger workers over older individuals. Proposed legislation called the Protecting Older Workers Against Discrimination Act (POWADA) could make the ADEA stronger. Specifically, it would allow workers pursuing age discrimination cases to use any evidence that they want to bolster their claims.

What does it mean to be a salaried employee?

Workers in the United States can either be labeled as exempt or nonexempt based on the details of their employment. These two statuses signify whether an employee receives hourly pay or if they earn a yearly salary. The Fair Labor Standards Act (FLSA) oversees these two employment types and makes many other distinctions between the two.

Millions of American workers affected by sexual harassment

While media attention has shed a light on sexual harassment and abuse in the San Francisco Bay Area and elsewhere, employees continue to suffer from harassment and unwanted sexual attention on the job. According to a study in the American Journal of Preventative Medicine, almost 1 out of every 18 women and 1 out of every 40 men has been subjected to sexual harassment in and around their workplaces. These statistics mean that around 10 million Americans could report some form of unwanted sexual contact, harassment or physical sexual assault by a supervisor, client, co-worker or boss, according to researchers.

The study was led by scientists at the Centers for Disease Control and Prevention, who highlighted sexual violence as a serious concern for employee safety on the job. The broader term can encompass unwanted sexual experiences like verbal harassment and groping up to rape and sexual assault. The analysis examined data gathered from the National Intimate Partner and Sexual Violence study, which included over 42,000 Americans. Scientists reviewed the research for information about perpetrators and incidents in the workplace as well as the after-effects of workplace harassment and assault.

Airline sued over pregnancy and breastfeeding discrimination

Employers in California and around the country are prohibited from discriminating against pregnant women by the 1978 Pregnancy Discrimination Act, and protections for breastfeeding mothers were added to the Fair Labor Standards Act in 2010. A lawsuit recently filed by a group of female flight attendants and pilots accuses Frontier Airlines of violating these laws. The women say that they were forced to take unpaid leave while they were pregnant and were denied reasonable breastfeeding accommodations.

A flight attendant alleges in the workplace discrimination lawsuit that she went months without a paycheck before her two children were born, and a pilot says that she was told that she would no longer be able to fly unless she agreed to stop pumping milk during flights. The Equal Employment Opportunities Commission reports that it has received similar complaints about the Colorado-based airline in the past. The women are being represented by attorneys from the American Civil Liberties Union.

Victims sometimes must work with their harassers

Despite state and federal laws designed to ensure safe working environments and address harassment in the workplace, it is possible that some people in California will have to endure continuing to work with their harassers. In a study that examined 60 arbitration cases where individuals who were accused of harassing behavior challenged the decisions of the employer, the discipline originally ordered was not upheld in 48% of cases. Most of the time, the discipline originally ordered was termination.

This means that the victim of harassment could have been forced to work with a harasser who had been fired and then brought back on. Nearly 28% of those who were accused of harassment and whose original punishment was overturned were fully reinstated. Forty-one percent had termination amended to suspension, and 24% were reinstated to their positions but without back pay.

Workers can fight back against unlawful discrimination

Despite the existence of state, federal and even local human rights and anti-discrimination ordinances, some workers in San Francisco continue to experience discrimination on the job. Going through sexual harassment or discrimination can be an emotionally draining experience, especially on top of the financial and professional hits that accompany this type of mistreatment. Workers have a right not to face discrimination in hiring, firing or promotions due to their protected characteristics, which include race, sex, disability, religion, national origin, age and often sexual orientation or gender identity. Workers also have the right to be free of harassment based on these characteristics, including sexual harassment.

Many workers are worried about reporting sexual harassment or employment discrimination because they fear retaliation from higher-ups on the job. In California, the Omnibus Sexual Harassment Bill provides workers with greater protections than those under federal law, but retaliation is just as unlawful as harassment and discrimination itself across the country. While it is true that many employers have at-will employment, this does not legitimize a termination or demotion that is caused by discrimination against a protected class or retaliation against a good-faith complaint of mistreatment.

WeWork sued for gender, pregnancy discrimination

California readers might be interested to learn that a former WeWork employee is suing the company and its recently ousted CEO over alleged gender discrimination claims. The complaint was filed on Oct. 31.

According to court documents, the plaintiff faced a gender pay gap and pregnancy discrimination while serving as former CEO Adam Neumann's chief of staff. The claim contends that Neumann asked the plaintiff about her marriage and pregnancy plans during her job interview in October 2013 and repeatedly referred to her maternity leave as a "vacation" when she eventually became pregnant. The suit further alleges that a man who was hired to perform the same job as the plaintiff was offered more than twice her annual salary of $150,000.

Female leaders may face more scrutiny at work

Female bosses in California and throughout the country are more likely to face discrimination from both male and female employees. This was the key takeaway from a study that involved 2,700 workers. These individuals were hired to transcribe receipts, and some of them received feedback from the person who they thought was their manager for the project. It was discovered that workers were more likely to react negatively to poor or critical feedback from a female manager.

They were also more likely to indicate that they wouldn't work for the company again in the future. It is thought that people tend to react harshly to negative feedback given by a woman because people associate women with being positive. An inability to accept criticism from a woman could be problematic for those who are in leadership roles, and it could make them less likely to want to pursue them.

California expands protections for nursing mothers at work

Progress can be slow and incremental in our society. This is especially true for breastfeeding mothers in the workplace. While parental leave has rightfully received recent attention, there has also been a push to help mothers once they return to work.

A new law taking effect in January 2020 will provide mothers who must pump milk during the day with further protections in the workplace. The new changes aim to reduce absences and increase worker productivity and job satisfaction.

EEOC rules that employers' Facebook ads were discriminatory

A string of recent rulings by the U.S. Equal Employment Opportunity Commission found that seven companies that posted targeted employment ads on Facebook violated federal civil rights laws. The rulings make clear that it is illegal for companies to exclude certain demographics when advertising jobs in the San Francisco Bay Area and around the country.

The ads came to light two years ago when an investigation by ProPublica and the New York Times found that various companies were using Facebook's advertising targeting tools to prevent women and older workers from seeing their employment postings. Following the report, the American Civil Liberties Union, the Communications Workers of America and others filed discrimination complaints with the EEOC. The agency investigated the claims and came to the conclusion that the companies acted illegally by excluding certain applicants.

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