• In Propria Persona

Marijuana, Sex, and Bias in the workplace

What is sex or gender discrimination?

Sex or gender discrimination is treating individuals differently in their employment specifically because an individual is a woman or a man. If you have been rejected for employment, fired, or otherwise harmed in employment because of your sex or gender, then you may have suffered sex or gender discrimination.

In everyday language as well as in the law, the terms “gender” and “sex” are used inter-changeably, but the two terms have different meanings. Social scientists use the term “sex” to refer to a person's biological or anatomical identity as male or female, while reserving the term “gender” for the collection of characteristics that are culturally associated with maleness or femaleness. Discrimination is generally illegal regardless of whether it is based on sex, or gender, or both sex and gender.

Here are some examples of potentially unlawful sex/gender discrimination that women, for example, may face:

  • Hiring/Firing/Promotions: You apply for a job for which you have experience and excellent qualifications, but you are not hired because some of the company's long-time clients are more comfortable dealing with men; you are told that you are laid off due to company cutbacks and reorganization, while men in the same job and with less seniority than you keep their jobs; you have worked for your company for several years, receiving exemplary reviews and an employee-of-the-year award, yet each of the five times you have applied for promotions, the positions you applied for are instead filled by less qualified men.

  • Pay: You worked your way up from the position of cook's helper to chef. A male chef with similar training and work experience was recently hired, and you find out that he will be paid more than you; you are a top salesperson for your company, but are moved to a less desirable territory while a man with much lower sales is given your territory and client base, enabling him to make much more in commissions than you will make for several years.

  • Job Classification: You work at a company for four years and put in many hours of overtime. After you return from having a baby, you tell your employer that you will not be able to put in as many hours of overtime. Your position is then changed to a lower level and you get less pay, while male coworkers in similar positions are allowed to cut back their overtime hours for personal reasons without any changes to their positions or pay.

  • Benefits: Your company's health insurance policy does not cover your spouse, because it is assumed that he will have his own benefits, while your male coworkers have their wives covered by the policy. Because your husband is between jobs, you have to pay increased health benefits on his behalf that your coworkers do not pay for their wives.

If any of these things have happened to you on the job, you may have suffered sex or gender discrimination. Sex or gender discrimination may be accompanied by other forms of illegal discrimination as well, such as age, race, or disability discrimination. Pregnancy discrimination and sexual harassment are also considered forms of sex discrimination under the law.

Weed at Work? California Prop 64 in the Workplace Friday, November 18, 2016

On November 8, California, along with Massachusetts and Nevada, legalized the recreational use of marijuana. With marijuana now legal in seven states, “the percentage of Americans living in states where marijuana use is legal for adults rose above 20 percent[.]”

In light of this change, California employers have expressed concern regarding the continuing viability of their existing drug testing and use policies, which often contain general prohibitions on the use of illegal substances.

Fortunately, Proposition 64 directly addresses this concern, making clear that it does not affect:

“[t]he rights and obligations of . . . private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.”

This provision codifies and extends the California Supreme Court’s case law holding that employers are not required to accommodate an employee’s use of medicinal marijuana, even though its use was legal under state law. The court also concluded that employers could conduct, and make employment decisions based on pre-employment drug tests that screened for marijuana. In light of this holding in Ross and the clear language of Proposition 64, employers with policies containing blanket prohibitions on the use of drugs (including marijuana) likely remain lawful.

Nevertheless, employers may observe an uptick in marijuana use of as a result of the Proposition. Thus, employers should review their existing policies and practices regarding drug testing current employees, as California law imposes numerous limits on such tests. For example, employers may generally not compel employees (except those in safety-sensitive positions) to undergo a drug screening without “reasonable suspicion” of impairment. Mandating an improper test could result in claims for invasion of privacy and wrongful termination.

Compliance-minded employers should consult with experienced employment counsel to review policies and practices regarding drug screenings. In addition, management and human resources professionals should be prepared to address employee inquiries regarding marijuana use in light of Proposition 64.

How to Prove a Hostile Work Environment for Unemployment

You must establish a case for constructive discharge -- you didn't just quit but were forced to do so due to workplace conditions.

A genuinely hostile work environment – at least in legal terms – doesn't actually occur all that often. You can be bullied, berated and intimidated all workday long, but you won’t be able to collect unemployment unless you can prove your work environment was legally hostile. You must quit for a specific reason that qualifies under the law, the most common being discrimination – meaning, the abuse aimed at you is based on your gender, sexual orientation, age, race, nationality, religion or disability.

Constructive Discharge

Voluntarily leaving your job usually prevents you from collecting unemployment benefits, but if you’re forced to quit due to a hostile work environment, this is a constructive discharge. It might have been your employer’s intention to drive you to quit, or maybe he knew you were being subjected to hostile treatment and did nothing about it, so you had no other option but to resign. A hostile work environment is the only grounds for a constructive discharge claim, according to the LexisNexis Legal Newsroom.

What You Must Prove

You must meet a few burdens of proof if you’re going to make a successful claim to the unemployment office:

  • You must be able to establish a direct relationship between the way you were treated and the fact that you quit. Ideally, you resigned on the same date the most recent negative incident occurred. If you wait too long ,or if your tormentor has since been fired or left his job, you may lose your right to a claim.

  • You must show that you didn’t suffer in silence. You made a complaint to your boss, supervisor or human resources department.

  • You must establish that not only was your work environment offensive to you, but that any reasonable person would have been upset by it.

How to Prove Your Claim

Your state isn’t going to take your word for it that you were subjected to a hostile work environment, so you’ll need tangible evidence to back up your claim. If you complain to your boss or the human resources department, do it in writing or follow up in writing. Keep your own notes as well, but keep them at home, not in your desk drawer or on your work computer. Go into as much detail as possible with each incident, beyond just the date, the time and a summary. Consider getting signed statements from co-workers who have witnessed the treatment you were subjected to, or who might even have been treated badly themselves. This type of “me too” testimony isn’t always admissible in court, according to the Spitz Law Firm in Ohio, but you’re establishing a claim with your unemployment office, not a judge or jury.

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