Nolanlim

Every situation is different and you should immediately consult an attorney if you believe that you are experiencing harassment in the workplace. This Blog post takes a quick look at what might constitute as a Hostile Work Environment. What is a Hostile Work Environment? To qualify as a “hostile” workplace, conduct at the workplace must be intentional, severe, recurring and/or pervasive and interfere with the employee’s ability to perform his/her job. Conduct and speech typically considered “hostile” is intimidating, offensive, abusive and/or otherwise offensive, going beyond rudeness or casual joking. Federal and state anti-discrimination laws prohibit harassing or discriminatory conduct when it is based on a legally protected characteristic such as sex, race, age, etc. 5 Examples from REAL CASES: Race: Plaintiff must prove harassment was unwelcome; because of race; affected the terms or conditions of employment; and conduct is imputable to the employer. – Case Law Example (1): Co-workers referred to Plaintiff’s hair as “brillo head.” This *could be considered highly offensive if pervasive thereby altering the conditions of plaintiff’s employment. Washington v. Boeing Co., 105 Wn. App. 1, 19 P.3d 1041 (2000). Sexual/Gender Harassment: Regarding sexual harassment, courts have found for plaintiff in situations of an abuse of power and pernicious gender discrimination among others. – Case Law Example (2): Hostile work environment harassment exists where co-workers or supervisors direct conduct or behavior toward employee because of her sex that creates an intimidating, hostile, or offensive working environment. Glasgow, 103 Wn.2d at 405; see also: DeWater v. State, 130 Wn.2d 128, 134-35, 921 P.2d 1059 (1996). – Case Law Example (3): The harassment is imputed to the employer. Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof. To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer (a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action. This may be shown by proving (a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the work place as to create an inference of the employer’s knowledge or constructive knowledge of it and (b) that the employer’s remedial action was not of such nature as to have been reasonably calculated to end the harassment. Glasgow v. Georgia-Pac. Corp., 103 Wash. 2d 401, 407, 693 P.2d 708, 712 (1985). Sexual Orientation: Washington Supreme Court recognized a claim of unlawful harassment arising from anti-gay comments. – Case Law Example (4): Supervisor asked the employee not to “flaunt” her sexual orientation around him. He told others he disliked her because she was gay… that he had tried to fire her. Loeffelholz v. University of Washington, 175 Wn.2d 264, 285 P.3d 854 (2012). Ethnic Discrimination: Ethnicity refers to an individual’s cultural heritage and includes one’s language, social customs, traditions, nationality, ancestry and sometimes his or her religion and related practices. – Case Law Example (5): Defendant agreed to settle lawsuit alleging discrimination and harassment based on national origin. According to the lawsuit, an Asian Indian employee was subjected to ethnic taunts, such as being called “dot-head” and “Osama Bin Laden,” etc. he was physically attacked by a coworker. EEOC v. MBNA-America (2007). Final Note: In many United States jurisdictions, a hostile work environment is not an independent legal claim. For instance, an employee cannot file a lawsuit on the basis of a hostile work environment alone. Instead, an employee will have to prove that she or he has been treated in a hostile manner because of her or his protected class, such as gender, age, race, national origin, disability status, and similar protected traits. Disclaimer: The materials available in this blog post and on https://nolanlimlaw.com/ are for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem.

I get several calls from employees that are unfortunately getting let go or terminated from their company. Every client I go through this type of analysis to help them decide whether accepting or not accepting a severance is the way to go: Waiver of Legal Claims – A company doesn’t give severance out of the goodness of their hearts. They are buying the assurances that you will not sue them for any number of potential legal claims stemming from your termination. Those legal claims include but are not limited discrimination, harassment, unpaid wages, retaliation for opposing illegal activities, and claims for unpaid bonuses. When you get a severance agreement you should do some online research or talk to an attorney to help figure out whether you have potential legal claims that might be worth more than the severance. Also, an employee should make sure that the money they are accepting would actually disqualify them from getting additional money they were supposed to get through bonus programs with the company. Enforcement of Non-Compete Claims – Many severance agreements include provisions that could cripple an employees ability to seek other work. An employee needs to examine non-compete provisions in a severance carefully to make sure they are not going to affect their future job prospects too much. Willingness to Litigate  – I rarely will take on a client who wants to challenge their severance agreement without being willing to litigate the case if the company is unwilling to settle. A client gains leverage to negotiate a higher severance when he or she has good legal claims and is not afraid to assert them if necessary. A client who just wants an attorney to write a threatening letter is not going to get the best value from the attorney. Likewise, an attorney is also not doing a client favors by agreeing to write a letter when he or she doesn’t believe in the legal claims. Thus, I suggest that any employee be prepared to litigate their claims if they truly want to challenge their severance payments. Moving On  –  This is a conversation I have with all my clients. At a certain point, there is a benefit to just signing the agreement and moving on. Typically, I advise clients to move on and sign if they already have another job lined up, they don’t have many strong legal claims, and they don’t have the willingness to litigate if they don’t get what they want from the company. To summarize, before signing any severance agreements make sure to think about the points I go over above. If you have any doubt about your legal claims its always advisable to seek counsel. The money you spend an attorney like myself or others who do similar work can at the very least help you make an informed decision about whether to sign that severance agreement.

I’ve been an employment attorney for over a decade and the above question is asked of me every time somebody comes to me with an employment related legal issue.  I thought I would share what I tell people who are considering lawsuits against their  just in case you need help evaluating whether you should sue your employer: Do I have a legal claim? This first question should be obvious. More often than not I’ll have potential clients come to me saying that they want to sue their employer because they just don’t like their boss. Ethically, attorneys cannot file litigation just to harass an employer. Most employee based lawsuits fall into a three buckets. Those buckets are: Unlawful Discrimination or Harassment Unpaid Wages or Benefits Retaliation Cases If you don’t fall in one of these buckets then the likelihood of you having a case is slim. To error on the safe side, do contact an employment attorney to see if you have a case. Most employee side attorneys will give you an initial consultation for little to no cost to see if you have a case. Can I handle the Emotional Stress of a Lawsuit? I tell all of my potential clients that a wrongful termination lawsuit is like a divorce proceeding. The litigation is often quite contentious because the employer does everything to make the employee look incompetent while the employee is often making an argument that employer committed some sort of discriminatory or unlawful act. You need to ask yourself whether you can handle attacks on your character, your work product, and your reputation. Most of my potential clients, take a day or two to speak with their families to assess whether a lawsuit is right for them. Often, the deciding factor for moving forward is their answer to my 3rd question below. How Much Have I Been Harmed? Often employers will commit legal acts against employees, but the harm to the employee does not make it worthwhile to pursue litigation. An employee came to me saying that he was shorted 2 hours of wages during a particular time period and that he was mad about it. The employee also told me he no longer work for his previous employer; he and the he found a better high paying job. In this situation, I often would recommend to the individual to just move on. The drama of a lawsuit would have distracted the employee  from performing his current job and the potential reward was not worth the stress that a lawsuit involves. In contrast, I currently have a case where a government employer terminated a high wage earning employee after 30 years of good work performance. My client had at least 10 years to go before he could retire with full benefits. In his case, suing his employer is worth it because the employer harmed him to a point where he will never be able to make close to the same money working for another employer. My client is potentially going to lose a significant amount of money in lost income in benefits. In this case, filing a lawsuit is worth it. Conclusion At the end of the day, filing a lawsuit is a very personal decision. As an employment attorney, I admire the individuals who are willing to stand up to their employers and seek justice. Large organizations will not change illegal behavior unless they are held accountable by individuals who file lawsuits. I also know, however, that litigation is not easy for individuals who have been harmed by their employer. I urge you to think through the three questions above to assess whether you should consider legal action against your employer.