The California Labor Code prohibits employers from discriminating against employees who inform them they are victims of sexual assault. In order to receive workplace protections under this law the sexual assault may have occurred in a place other than the workplace.
Although it may be embarrassing to tell your employer you are the victim of sexual assault the workplace protection for victims of sexual assault requires the employer to have actual or constructive knowledge the employee is a victim of sexual assault. Actual knowledge exists if the employer is directly informed the employee is a victim of sexual assault. Constructive knowledge an employee is a victim of sexual assault could occur if the employee provides a doctor’s note to their employer, and the name of the doctor’s office or psychologist is, “Sexual Assault Clinic.” Exactly what constitutes constructive notice an employee was a victim of sexual assault is not clear. The term constructive notice is defined in a California jury instruction used in premise liability cases. A critical part of the definition reads, “You must decide whether, under the circumstances, the condition was of such a nature and existed long enough that defendant had sufficient time to discover.”
Having a dialogue with the employer to discuss the situation is critical. The law now requires employers to engage in interactive processes with the victim of sexual assault in order to determine what types of reasonable accommodations are necessary. Reasonable accommodations include time off to treat with a psychologist. Reasonable accommodations to victims of sexual assault and stalking may also include safety measures such as transfers, reassignments, modifications of schedules, or changes in a work telephone number. Accommodation requests should come from licensed medical professionals, domestic violence counselors, or sexual assault counselors. However employees may sign statements certifying their request for accommodations are due to sexual assaults, in conjunction with or without the statements by these professionals. If a victim of sexual assault needs time off from work for an unscheduled absence that must be certified by one of these professionals.
The Employment Lawyers Group has exceptional experience representing women who are victims of sexual assaults, sexual harassment, and stalking. Please contact us for a delicate and confidential attorney-client privileged communication.