Applicants and Temporary Employees are afforded the Same Rights as Regular Employees Under FEHA

posted by Daniel Stevens  |  Jan 1, 2019 5:42 PM [EST]  |  applies to California


man upset


A decrease in unemployment rates leaves job-applicants vulnerable to sexual harassment. In June 2017, California’s Employment Development Department reported that the unemployment rate dropped to 4.7% in comparison to the May 2016 5.2% rate. This drop was a result of businesses in California opening a net 17,600 employment opportunities. Although this was a big win for the jobless, this increase in job openings gave and continues to give the employer’s the opportunity to take advantage of eager applicants.  But are applicants protected under California’s employment laws? Such a situation calls for advice from Sexual Harassment Lawyers.


Sexual Harassment

Being an applicant as opposed to being an employee should not discourage the applicant from making a claim against the employer through Sexual Harassment Lawyers. There is no exact formula a court can look to in deciding whether there was, in fact, an employment relationship to decide whether the employee has a claim. Instead, a court will look at the surrounding circumstances, the particulars of the relationship between the parties, and the control the employer had in the hiring process. This can be advantageous to applicants seeking a claim for sexual harassment because it does not force the court to follow a rigid checklist of elements that deem whether an applicant has a claim or not.

Sexual Harassment

Applicants are not the only individuals who are at risk of being subjected to unlawful employment practices. In addition to applicants, employees who are paid through a temporary agency to work for an employer contracting with the temporary organization might be recognized as an employee of that employer. This means that the employee possesses the benefits and restrictions under the control of both the temporary agency and the contracted employer. Therefore, the contracting employer’s liability extends to take reasonable steps towards ensuring the employee has a work environment free from sexual harassment. (Cal. Code Regs., tit. 2, § 7286.5, subd. (b)(5)) This coincides with the Fair Employment and Housing Act’s Gov Code, § 12940 et seq., which requires that the employee and employer relationship be linked to the amount of control exercised over the particular employee.

upset boss

In Bradley v. Department of Corrections & Rehabilitation, 158 Cal. App. 4th 1612, the plaintiff was a social worker who was sent via a temporary service agency to work at a prison.  Throughout her employment, at the prison, she was sexually harassed by the prison’s Chaplin.  The Chaplin abused his position of power to stalk, terrorize, intimidate, and embarrass the plaintiff. This behavior towards the plaintiff was characterized as sexual harassment in the suit. The plaintiff made formal complaints to the prison officials, however, their response was merely to send the plaintiff through a complex and prolonged process which did nothing to address the problem. Because this process did not address the problem nor did it prevent the Chaplin’s behavior from reoccurring, the prison did not meet the Fair Employment and Housing’s standard set for employer’s to take reasonable steps to prevent sexual harassment within the workplace. Also, the plaintiff brought a claim against the prison for violating  California Government Code § 12940.

Sexual Harassment Lawyers

The California Government Code § 12940 prohibits employers and organizations from engaging in unlawful employment practices.  As the case mentioned, the plaintiff was protected by § 12940(j) because the subsection extends liability not only to employers, but also employment agencies, training programs leading to future employment, and apprenticeship training. Here, the plaintiff had been placed in her position of employment through a temp agency so her claim was valid because she was considered a special “employee” per § 12940(j).


Originally the jury awarded the plaintiff damages on her retaliation claim, however, the Superior Court set the jury’s award aside and ruled in favor of the prison defendant. The Superior Court sided with the defendant’s argument that the plaintiff employee had no standing under the Fair Employment and Housing Act.  After this ruling, the plaintiff appealed.

unlawful employment practices

Interestingly, the Court of Appeal, in this case, did not accept the prison’s argument that they were not liable for the Chaplin’s acts because the majority of his behavior towards the plaintiff took place outside of the workplace. Ultimately the Court came to the decision to reinstate the jury’s verdict based on the prison’s inadequate response to the plaintiff’s complaints of the sexual harassment. As mentioned previously the Court looked to the surrounding circumstances, the nature of the relationship between the applicant and the employer, and the control exercised by the employer. By applying this test the Court of Appeal reversed the original order and reinstated the jury’s award to the plaintiff. It is important to note that the Court did not dismiss the plaintiff’s case based on the fact that some of the acts took place off-site. This also means applicants should not shy away from making a claim just because some of the incidences took place outside of the workplace. These are types of facts that Sexual Harassment Lawyers would need to investigate.


In a situation where an employee has made a complaint to their human resources department or employer concerning sexual harassment and there has been an inadequate response or no response at all, he or she should contact Sexual Harassment Lawyers in the local area for a free consultation.



Sexual Harassment Lawyers


While the job market has expanded in California, it is essential to know that the Fair Employment and Housing Act provides protection for applicants while they are in pursuit of employment.  Arguably, the decrease in unemployment rates in California has left applicants vulnerable to unlawful hiring practices and sexual harassment. Therefore, applicants need to be aware that they do have rights and they also need to know what duties employers and organizations owe to them to ensure the hiring process is free from unlawful practices.  Also, employees who are hired through temporary agencies are protected under the FEHA even though they may receive compensation through the temporary agency.


An applicant or employee working through a temporary agency who feels that he or she has been sexually harassed in the process of applying for a position should contact Sexual Harassment Lawyers to discuss the details of the matter.


Source: Applicants and Temporary Employees are afforded the Same Rights as Regular Employees Under FEHA

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