The bottom line: If you think you are getting mistreated or harassed at work then contact us to discuss further. We are here to help.
There are many laws that protect employees from harassment at work. Federal law, including Title VII of the Civil Rights Act of 1964, and specific state laws enacted by each state protect employees from being harassed. In California, not only does the California Constitution protect against employment harassment, by both public and private employers, the California Fair Employment and Housing Act (aka the “FEHA”) also forbids harassment.
However, not everything an employee experiences at work that he or she may believe “harasses” them is considered harassment that is illegal under California law. California law prohibits “harassment” on the basis of specific categories, including sex, gender, gender identity, gender expression or sexual orientation. Sexual harassment falls under these categories.
Sexual harassment typically falls under two types--“quid pro quo,” where an employee's subjection to sexual conduct is linked to the grant or denial of job benefits, such as getting or retaining a job, or receiving a favorable performance review or promotion; and “hostile environment,” where the sexual conduct had the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.
A violation on of quid pro quo sexual harassment generally occurs when the employee is subject to unwelcome sexual advances, conduct or comments by a supervisor with immediate or successively higher authority over the employee; the harassment is based upon sex; and the employee's reaction to the harassment affected tangible aspects of the employee's employment. The nature of quid pro quo harassment is a supervisor's attempt to gain sexual consideration from an employee. Further, even sexual advances from a supervisor who is the same gender as an employee are protected as harassment under the law.
“Hostile environment” sexual harassment cases typically involve various forms of verbal and physical conduct, of both a sexual or nonsexual nature, which create a hostile or offensive working environment for the employee.
A violation of “hostile environment” harassment occurs when an employee is subjected to unwelcome sexual advances, conduct or comments; the conduct or comments are based on sex; and the conduct or comments are “so severe or pervasive” as to “alter the conditions of the victim's employment and create an abusive working environment.” Unlike quid pro quo claims, there is no requirement that an employee suffers any loss of a job benefit or sustains any actual injury in order to bring a claim for hostile environment harassment. There is also no requirement that an employee show psychological injury in order to bring and prevail on a claim of hostile environment sexual harassment.
Further, there is no need to show that the offensive comments or conduct was intended to be seen or heard by the victim. In other words, severe or pervasive conduct aimed at other co-workers could constitute harassment for you.
Keep in mind that the standard for any conduct to be considered harassing is that such conduct must be severe or pervasive, but not both. Factors that are considered (typically by a jury) in determining if conduct is “harassing” include the nature of the conduct as well as the frequency, but if the severity of the conduct is high enough, sometimes even a single incident of harassing conduct could be held to be illegal harassment under the law.
Employees are, in addition, protected from harassment based on race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, age or military and veteran status. Hostile work environment claims based on these protected categories are reviewed under the same standard as those based on sexual harassment, discussed above. To be actionable, the harassment must be severe or pervasive.
While employer’s have an affirmative duty and obligation to prevent harassment from occurring at the workplace, by, for example, training employees about harassment and implementing policies and procedures aimed at disciplining those employees who engage in harassment, individual employees, including supervisor or coworkers, who harasses other employees may be held personally liable under California law, regardless of the employer's liability. This means you can sue a harasser in California Court and such harasser will be individually liable for any harassment you can prove, whether or not the employer itself is also held to be liable.
If the harasser is a sole proprietor, partner, or high-ranking officer of a corporate employer, the harasser's conduct may be imputed to the employer. In other words, the harassing conduct is held to be that of the employer, which makes the employer automatically liable for any harassment conducted by any sole proprietor, partner, or high-ranking officer of a corporation.
In the same way and based on the same reasoning, any harassment by any supervisor of a company is imputed to the company itself and the company will have no defense to liability in such a case. This is also referred to as strict liability. When a supervisor engages in harassment, the employer is “strictly” liable for any harassment an employee can prove.
These principles apply whether or not an employee is harassed based on sex or based on some other protected category such as age (if the employee is over the age of 40), disability or religion. Examples of religious harassment include when an employer attempts to force an employee to follow the employer's religious beliefs. Harassment based on age occurs when an employee over the age of 40 is insulted or made fun of because they are older in age. Similarly, disability discrimination occurs when an employee with a disability is ridiculed, ostracized or berated at work due to the fact that they have limitations. These behaviors are prohibited in the workplace so long as they get to be severe or pervasive.
If you are being mistreated at work and are curious if the mistreatment is harassment, please call us, we are always happy to talk with you.