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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33564
Experience:  Retired (mostly)
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I am in California. I am the sole employee of a business owned

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I am in California. I am the sole employee of a business owned by three men. There are clearly marked men's and women's restrooms. I am a woman. Before I started working here, they used both bathrooms freely. I have repeatedly asked that they no longer use the women's restroom, but after a few weeks, somebody starts to use the women's bathroom again. Do I have any legal right to insist that the women's restroom can only be used by me?
Submitted: 9 months ago.
Category: California Employment Law
Expert:  socrateaser replied 9 months ago.
Hello,

Assuming that you can show that there are at least 5 employees (whether full or part time, and including any independent contractors) who are "regularly" employed by your employer, then you could claim sex harassment under the California Fair Employment and Housing Act (FEHA); and you could file a complaint with the Department of Fair Employment and Housing (DFEH). The grounds for the claim is that the employer's continued use of the Women's restroom, after your request that they do not, is causing you to feel intimidated due to your sex, and the employer is affirmatively creating a hostile sexual environment by continuing to use the Women's restroom after your reasonable requests that this conduct cease.

Another route would be to file a Cal-OSHA complaint, if the Women's restroom is unreasonably dirty, due to the failure of the employer to maintain its cleanliness.

Those are the two options. Under each, you are protected from retaliation (Cal. Labor Code 1102.5). Of course, you will have to vigorously protect your rights, because with such a small labor force, it will be pretty obvious who complained, and consequently, your employer may make your life miserable, after you complain, and an investigation takes place.

If you need links to the various government resources, please let me know and I will be happy to provide.

Please let me know if my answer is helpful or if I can provide further clarification or assistance.

And, thanks for using justasnswer.com!
Customer: replied 9 months ago.

As I indicated in my initial inquiry, I am the ONLY employee. There are three owners and one independent contractor who are regularly in the building, but I am the ONLY employee. Do I have any rights as the ONLY employee? Or not. Because there are five people total (4 men and 1 woman) who regularly use the office, does that count as "five employees" as you described above? They are not technically employees. I am the ONLY person who is technically an employee. The four males who use the office are the three owners of the company by which I am employed and an independent contractor with some business affiliation to the three owners. What can I legally do to insist that these men do not use the clearly marked women's restroom?

Expert:  socrateaser replied 9 months ago.
Cal. Govt. Code 12926(d), provides: "Employer" includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities."

The owners, if they are associated with each other to carry on a business for profit, are partners. As partners, they are acting as agents of the employing company, and they are within the scope of the definition of an employer, which makes them subject to the protections of the Fair Employment and Housing Act, regardless of the total number of payroll employees working for the company.

Thus, my original answer stands as written. Your recourse is to complain to the DFEH. Complaints to management does not trigger protection under the California "whistleblower" law (Lab. C. 1102.5). Only a complaint to DFEH will accomplish that goal.

Consequently, unless you are prepared to bring your complaint to the government, then you have no legal recourse at all, and you can be fired for complaining to your management.

This is an "all or nothing" proposition. I deal with many, many clients who simply refuse to take the steps necessary to protect themselves, because they are afraid to "rock the boat." I completely understand that fear. But, it does not change the law. In order to determine whether or not your employer's actions are sufficient to trigger protection under the FEHA, you must file a complaint, and if you file that complaint, your employer will know who filed, because, as you correctly point out, you are the only employee.

Hope this helps.

Customer: replied 9 months ago.

Thanks very much.

Expert:  socrateaser replied 9 months ago.
You're welcome. Please let me know if I can provide further clarification or assistance.
socrateaser, Lawyer
Satisfied Customers: 33564
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you

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