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Sexual Harassment

Our firm covers cases involving sexual harassment, which is a form of sex discrimination that violates the
Title VII of the Civil Rights Act of 1964 and California Fair Employment and Housing Act, also known as
FEHA (Government Code §12920 et seq.). Sexual harassment includes unwelcome sexual advances,
requests for sexual favors, and other verbal or physical conduct of a sexual nature. These instances
constitute sexual harassment when submission to or rejection of the conducts explicitly or implicitly affects
an individual's employment, unreasonably interferes with an individual's work performance, or creates an
abusive, intimidating, hostile or offensive work environment. When determining whether harassment has
occurred under Federal Law, one should examine the entirety of the circumstances, such as the nature of
the sexual advances and the context in which the alleged incidents occurred. A determination of the
allegations is made from the facts on a case-by-case basis. Sexual harassment can be found in a variety of
circumstances under Federal Law, including but not limited to the following:

●    The harasser's conduct must be unwelcome.
●    The victim as well as the harasser may be a woman or a man and does not have to be of the opposite
     sex.
●    The harasser can be the victim's supervisor, an agent of the employer, a supervisor, or a co-worker.
●    The victim does not have to be the person harassed and can be anyone affected by the offensive
    conduct.
●    Unlawful sexual harassment may occur without economic injury to or discharge of the victim.

Sexual Harassment Under California State Law

The Fair Employment and Housing Act defines harassment due to sex as including sexual harassment,
gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. The Fair
Employment and Housing Commission regulations define sexual harassment as unwanted sexual advances
or visual, verbal, or physical conduct of a sexual nature. Sexual harassment includes many forms of
offensive behavior and includes harassment of a person who is the same sex as the harasser. Under
California law, illegal harassment may include, but is not limited to, the following:

●    Unwanted sexual advances
●    Offering employment benefits in exchange for sexual favors
●    Making or threatening reprisals after a negative response to sexual advances
●    Visual conduct, e.g., leering, making sexual gestures, displaying sexually suggestive objects or
    depictions
●    Verbal conduct, e.g., making or using derogatory comments, epithets, slurs and jokes
●    Verbal sexual advances or propositions
●    Verbal abuse of a sexual nature
●    Graphic verbal commentaries about an individual’s body
●    Sexually degrading words used to describe a person; suggestive or obscene letters; notes or invitations
●    Harassment based on gender, such as targeting a person for mistreatment because she is female
●    Physical conduct, such as touching, assault, impeding or blocking movements

Sexual Orientation Discrimination

Our firm also handles discrimination cases based on sexual orientation. In California, it is illegal for an
employer to discriminate against an employee because of that employee's sexual orientation or perceived
sexual orientation. However, there are no Federal Laws prohibiting this type of discrimination. It is also
illegal in California for an employer to discriminate against an employee on the basis of that employee's
perceived sexual orientation. Thus, if an employer believes an employee is gay and fires him because of
that, it is illegal whether or not the employee is actually gay.

Frequently, the same actions that violate the laws against sexual orientation discrimination violate other laws
as well. It is possible that an employer who is discriminating on the basis of sexual orientation is also
discriminating on the basis of gender.

The law against sexual orientation discrimination is very new, so it is not clear what damages can be
received in court. However, it appears that employees can recover their lost wages and other benefits,
emotional distress damages, and punitive damages. It is not at all clear whether or not they may recover
attorney fees and costs.

Statute of Limitations on Sexual Orientation Discrimination

One of the aspects of the California law is that the employee must make a complaint to the California Labor
Commission no more than 30 days after he or she is discriminated against. Only after the California Labor
Commission has processed the claim may the employee sue in court under the Labor law.

Retaliation

Under California law, it is illegal for an employer to retaliate against an employee for opposing or
complaining about sexual harassment. It is also illegal to retaliate based upon an employee's opposition to
harassment or discrimination based on other protected categories, including, but not limited to, race
ancestry, national origin, color, gender, sexual orientation, religion, disability (including HIV/AIDS
diagnosis), marital status, age (40 and over), medical condition (cancer and genetic characteristics), refusal
of family care leave, refusal of leave for an employee’s serious, health condition, denial of pregnancy
disability leave, retaliation for reporting patient abuse in tax supported institutions. Retaliation may also be
illegal under Federal Law, but you must consult an attorney for further information. Retaliation may come
in many forms, including but not limited to:

•        Having workplace rules and policies being applied to the protected employee more stringently than
       others
•        Being verbally abused or ridiculed
•        Being improperly "written up" without justification
•        Being wrongfully terminated, demoted, or denied new opportunities
•        Being isolated from others that the employee previously normally worked with
•        Having normal duties removed from the employee's normal responsibilities.

Overtime

Our firm also handles overtime cases. The general rule in the workplace is that non-exempt employees shall
not work more than 8 hours in one day or 40 hours in one week unless they are paid overtime. For
example, if an employee works 11 hours in one day, he/she must be paid overtime for the three hours
which exceed 8 hours. Provided that he/she is a nonexempt employee, he/she must get time-and-a-half for
those overtime hours. To look at detailed information about California's wage and overtime laws, please
visit the California Division of Labor Standards Enforcement (http://www.dir.ca.gov/dlse/FAQ_Overtime.
htm).

The key to overtime cases is whether or not you are exempt from the labor code. Exempt employees work
in professional, managerial, or supervisory positions, are paid regular salaries, and are not entitled to extra
overtime pay. Non-exempt employees are entitled to overtime, and include people working in factories,
service positions, retail, clerical positions, etc. If an employee works hourly, then he/she is almost assuredly
non-exempt. Many employers abuse the exempt qualifications, saying that people are exempt when they
actually are not. Sometimes people get fancy supervisory titles when they are actually only doing clerical
work, and are actually entitled to overtime pay. Our lawyers can handle disputes involving either refusal to
pay overtime, misclassifying employees as exempt, or a combination of the two.

Rest and Meal Breaks

Most employees are entitled to a half-hour lunch break during every 8-hour shift, along with two 15-minute
rest breaks. If you are not allowed to take breaks, you should speak with an attorney. These cases rest on
how much employer coercion is involved. Some people might not want breaks and are happy to not get
them. Your employer's duty is to make it clear that breaks are being offered and that you are expected to
take them. An isolated incident might not make for a good case, but if the general policy seems to be
pressuring employees to deny breaks, you and your co-workers may have a claim.

Child/Sexual Abuse

Our firm also handles child/sexual abuse cases. In California, child abuse is defined as emotionally,
physically, or sexually abusing or neglecting a minor by a parent or guardian. It also includes any mental
abuse or anguish imposed on a child, cruelty, or child exploitation.

Sexual abuse refers to sexual impropriety, including rape and sexual assault, typically between a child and
an adult or a young child and a much older child. Women and children are the most common victims of
sexual abuse, which is characterized by the victim's lack of or inability to consent. Child sexual abuse
specifically denotes the sexual abuse of a child.

Holding Institutions Accountable for Child Sexual Molestation

Child molestation typically happens because a school, church, business or other organization failed to
protect the victim. Child molesters often target schools and day care centers because they give the molester
an opportunity to have contact with many children. These organizations frequently ignore warning signs of
child sexual molestation and behavior that may indicate abuse. Under California law, schools, day cares, and
health care providers are required to report known abuse to law enforcement. However, many institutions
try to cover it up, with no regard for the victims they were obligated to protect. If they have suspicions of
child molestation, they may fire the suspected employee and hope the problem will go away. But abusers
fired from one job will often get another job where they can continue to have access to children.

Failure to report by telephone immediately, or as soon as practicably possible, and in writing within 36
hours is a mis¬demeanor “punishable by up to six months confinement in a county jail or by a fine of one
thousand dollars ($1,000) or by both imprisonment and fine.” (Pen. Code, §11166, subd. (c).) However, if
the mandated reporter’s willful failure to report child abuse or neglect results in great bodily injury or death
to a child, the mandated reporter “shall be punished by not more than one year in a county jail, by a fine of
not more than five thousand dollars ($5,000), or by both that fine and imprisonment.” (Pen. Code, §11166.
01 (b).) Basically, the purpose of this potential penalty is to ensure that mandated reporters will report all
known or reasonably suspected incidents of child abuse immediately to the local police or sheriff’s
department, the county probation department (if designated by the county to receive such reports), or the
county welfare department.

Warning Signs of Abuse in Children

When warnings appear, it does not necessarily mean that a person is abusing a child. It is always important
to err on the side of caution when protecting the rights of children. Some of the signs of abuse in children
include:

•        Sudden behavioral and emotional changes
•        Changes in school performance
•        Signs of physical injuries
•        Withdrawal or mood swings
•        Unjustifiable fears and nightmares

Failure to Make A Required Report

A mandated reporter who fails to make a required report of child abuse is guilty of a misdemeanor
punishable by up to six months in jail or by a $1,000 fine or by both a fine and imprisonment. If however,
death or great bodily injury happens to the child as a result of the abuse, the mandated reporter is guilty of a
misdemeanor punishable by not more than one year in a county jail, by a fine not to exceed five thousand
dollars ($5,000), or by both. He or she may also be found civilly liable for damages, especially if the child-
victim or another child is further victimized because of the failure to report. If a mandated reporter conceals
his or her failure to report abuse or “severe” neglect, the failure to report is a continuing offense until the
failure is discovered by an agency. Because it is a continuing offense, the statute of limitations does not
start to run until the failure to report is discovered.

THE REVELATION LAW
FIRM

2550 Ninth St., Suite 208A
Berkeley, CA 94710
1-510-665-4195
1-510-665-4197(fax)
1-510-295-2507(efax -- for larger documents)
info@revelationlaw.com