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I was sexually assaulted or harassed at my workplace, but I was then laid off due to COVID-19. Do I still have a legal claim?What are some of my options?

Sexual assault has no place in the workplace. It is never acceptable for an employer to lay off or fire a worker because they have been sexually harassed or assaulted. Most California employers are aware that, once an employee makes a report of sexual assault or harassment, the employer cannot terminate that worker’s employment without raising suspicions of retaliation. However, what some employers do not know is that the same is true for those employees who experienced sexual assault or harassment at the workplace and did not yet have a chance to report it.

The COVID-19 pandemic has shut down large portions of both the public and private sector. As a result, employers are under significant pressure to cut as many expenses as possible. Often, this means laying off employees to save on labor costs. And while employers can generally lay off or fire an employee for no reason, an employer cannot do so for an illegal reason. Some employers who are aware that an employee was sexually harassed or assaulted at the workplace may think they can lay off that employee to avoid an upcoming lawsuit, citing COVID-19 as the reason. That is not the case.

California employment law protects employees from being fired or laid off for illegal reasons. When an employer does so, it is called wrongful termination. Firing an employee for having been sexually harassed, discriminated against, or assaulted at work is illegal. Of course, employers may think that the COVID-19 pandemic provides them some cover for their illegal actions. Again, this is not true. When challenged, an employer must be able to justify the reason for terminating or laying off an employee.

Employers will likely be prepared to justify their reasons for laying off an employee who was the victim of sexual assault or harassment. Thus, it is important that an employee be equally prepared. Employees should consider the following after being laid off or fired:

1. Despite the understandable urge to do so, do not engage in any retaliatory tactics against your employer.
2. Ask your employer for the reason for your termination in writing.
3. If possible, find out whose decision it was to terminate your employment.
4. Request a copy of your personnel file.
5. Preserve all potentially relevant documentation, including an employment contract, emails, text messages, and memos.
6. Locate any witnesses to the assault or harassment, and if there are no witnesses, make a note of the people you told about what happened.
7. Consult with an experienced Southern California employment law attorney.

Given the realities of the COVID-19 pandemic, employers will likely cite financial concerns for any termination. However, if an employee is able to show that the employer was hiding facts that were relevant to their decision to terminate your employment, these facts can help show that the employer’s cited reason was pretextual.

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