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Discrimination in the Workplace

February 18, 2001

For Companies

Although every company in California is legally required to provide a workplace free of discrimination based on sexual orientation, its obligations do not end there.

The alleged harasser also has rights--including the right to sue if a bogus claim leads to a job action against him. Stephen Monkarsh, 36, an employment law attorney with the Los Angeles office of Sedgwick, Detert, Moran & Arnold, advises employers to take several steps to stay within the law. These include:

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Employers should print a disclaimer on their job application form saying that employment is "at will," which means the employer is able to terminate a work relationship without any explicit reason. The employer's right to do this, which already exists under state law, is thus made explicit.

Companies also should distribute an employee handbook clearly specifying what conduct is expected and what is prohibited.

A company official should be designated to both receive harassment claims and to choose an investigator free of any conflict of interest. This means a claim should probably not be investigated by the complainant's boss, for example, who may be the harassing individual, or by the company lawyer if that lawyer represents the company in subsequent litigation.

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Companies should stipulate that no employee will be punished for lodging a complaint.

Every complaint should be followed up in a timely and fair manner.

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If the complaint is found to be legitimate, the employer should not only restore lost benefits and privileges, but also take steps to ensure the wrongful conduct does not recur.

Once a complaint has been lodged with the state, the odds of court action rise considerably. Of the 493 complaints alleging harassment based on sexual orientation filed last year with the state Department of Fair Employment and Housing, only 16 were resolved by department-sponsored mediation efforts, said Barbara Osborne, deputy director of enforcement.

For Employees

Employees who suspect discrimination should keep copies of job evaluations and harassing e-mail and cartoons and make a note of who was present when harassing comments were made.

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If they receive no satisfaction after going through workplace channels, they may file a complaint with the Department of Fair Employment and Housing within one year of the last act of discrimination or contact Lambda Legal Defense and Education Fund for further information.

--JOSEPH HANANIA

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