Harassment in the California Workplace
California’s labor laws provide broad protection against harassing conduct directed at employees in the workplace. The laws operate on the basis that every worker deserves to enjoy a workplace that is safe and free from unlawful conditions.
It is illegal to direct negative, inappropriate or threatening conduct at a worker based on certain protected characteristics, including their age, race or sex. Employees who are targeted for behavior of this nature may have a right to seek compensation for the harm done to them.
Workplace harassment can take many forms and can be motivated by all sorts of behavior or beliefs including bigotry, meanness or personal gratification. But it is not all types of unfair, inappropriate or mean behavior that amounts to workplace harassment. This is why it is important to understand what amounts to harassment under CA law and the rights of employees against harassing conduct.
What is harassment in CA?
Workplace harassment refers to unlawful conduct that targets an employee based on their protected characteristics. They include threats, unwanted touching, inappropriate comments or jokes, targeted at a protected individual, that:
- Disturbs their emotional tranquility at work;
- Affects their ability to perform their job; or
- Interferes with and undermines their personal sense of wellbeing. Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App.3d 590, 608.
Workplace harassment is prohibited under various federal and California laws including Title VII of the Civil Rights Act and the California Fair Employment and Housing Act (FEHA). The Americans with Disabilities Act and the Age Discrimination Act also prohibit workplace harassment in California. FEHA provides the broadest protection for employees against harassment in California workplaces. It applies to all private, state and local employers in the state.
These protections are available to employees, job applicants, independent contractors, unpaid interns and volunteers. Gov. Code, § 12940, subd. (j)(1). Even where there is an indirect employment relationship, such as a worker who is outsourced to another company, these protections may still be available. In Jimenez v US Continental Marketing Inc., it was held that an employment relationship can exist even in an indirect situation. So long as the relationship shows the employer’s exercise of direction and control over the employee, a relationship exists.
Although harassing conduct will often include acts such as unwanted physical touching, derogatory comments or inappropriate propositions, not all acts qualify. For an act to qualify as unlawful harassment:
- It must be sufficiently serious: Harassing conduct is usually required to be objectively hostile or abusive. The law does not generally protect employees against conduct that is sporadic or mildly offensive. Such actions must be so severe or pervasive that they create a hostile work environment and justify the intervention of the courts. Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279. There are certain factors the court may consider in determining if this has occurred. These include:
- The severity of the conduct
- The frequency of the conduct
- The context of the conduct
- It must be based on a protected characteristic: To qualify as harassing conduct, the actions must also target an employee based on a protected characteristic. For instance, constantly insulting or threatening an employee based on their race or sexual orientation may amount to harassing conduct. The characteristics protected under the law include:
- Race, Color, National Origin, or Ancestry
- Medical condition
- Genetic information
- Marital status
- Sexual orientation
- Gender, including gender identity or expression
- Military or veteran status
If you have been harassed at work in any of these circumstances, you may be entitled to file a complaint. Contact our experienced California workplace harassment attorneys to learn more about how the laws may apply to you.
What is considered sexual harassment?
Sexual harassment is one of the forms of harassment that can occur in the workplace. It usually involves negative, unwanted or inappropriate conduct directed at a worker based on protected characteristics such as the victim’s sex and other related characteristics.
Sexual harassment is gender neutral, which means it does not relate to a specific gender. Anybody can be targeted for sexual harassment, and while this can often be motivated by sexual desire, this will not be the case in all circumstances. Sexual harassment can occur in situations where a person is harassed on account of their:
- Gender identity
- Gender expression
- Marital status
- Sexual orientation
- Pregnancy-related medical conditions. Gov. Code, § 12940, subd. (j)(1), (j)(4)(C).
There are several types of actions that can amount to sexual harassment. They include unwanted physical touching, repeated requests for sexual favors, inappropriate sexual jokes, graphics or messages and many other acts.
However, there are only two types of sexual harassment, these are quid pro quo sexual harassment and hostile work environment sexual harassment.
- Quid quo pro sexual harassment: This is sexual harassment based on request for sexual favors in exchange for specific employment benefits. Hughes v. Pair (2009) 46 Cal.4th 1035, 1042. These types of sexual harassment are often very serious. Even a single instance can be enough to file a lawsuit, if it results in results in adverse employment action for refusal to cooperate. It often occurs in two forms:
- An offer of some kind of job benefit in exchange for an employee submitting to a sexual favor; or
- A threat of an adverse employment action unless an employee accepts certain sexual demands.
- Hostile work environment sexual harassment: Most other sexual harassment cases fall here. Some may be motivated by sexual desire and others, by abusive or hostile conduct that creates a hostile work environment. It can include widespread sexual favoritism where a supervisor constantly provides superior employment opportunities to sexual partners at work. It can also involve sexually harassing conduct directed at others, which creates a hostile work environment.
Due to the various ways in which sexual harassment can occur, it can be difficult to tell what kind of harassment you have suffered. A skilled sexual harassment attorney will help you understand how your rights were violated.
How to report sexual harassment?
There are several ways in which you can handle a situation of sexual harassment at work. You can choose to resolve the situation informally with your employer, file an administrative complaint or file a lawsuit in court.
However, they all begin with making a report of the harassing conduct at work. This is important for various reasons. It lets you give your employer a chance to stop the unlawful conduct. Besides, attempting an internal resolution strengthens your claim if your employer fails to do something about your complaint. To report sexual harassment at work, follow these steps:
- Contact HR or a supervisor: California law requires workplaces in the state to have internal policies that identify how a harassment complaint can be made. If the conduct is from a co-worker, you can approach an immediate superior or go directly to HR. If the conduct is from a supervisor, you may want to go to HR instead.
- Follow up: Allow some time for action and follow up to understand what is being done about the situation. Also ensure you document your correspondence with the supervisor or HR. Having a paper trail ensures you can have evidence that you attempted an internal solution.
- Contact an attorney: If nothing is done about your complaint, then it may be time to contact an attorney. A qualified sexual harassment attorney will explain all the options available to you under the law and help you pick the best route to compensation.
Who can be liable for harassment at work?
Finally, you should understand who to sue in the event of harassment at work, whether sexual or non-sexual. Often, harassment may be carried out by a co-worker, and other times, it will come from someone in authority, like a supervisor.
You can either choose to sue the person directly responsible or you can sue your employer for allowing the harassment to occur. In most circumstances, it will be easier to sue your employer since they maintain overall responsibility to keep a workplace free from abusive conduct. They are also more likely to afford any compensation that may be awarded to you.
There are different liability theories that may apply to make an employer liable in these instances. They are:
- Strict liability: If the person that committed the harassment is a supervisor, your employer will be strictly liable. This is because the supervisor is deemed to cat on behalf of your employer. State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1041.
- Failure to prevent: If the person that harassed you is a co-worker, or even an independent contractor or customer, your employer may be liable. But only if you can show that your employer:
- Knew or should have known of the unlawful conduct; and
- Failed to take immediate and appropriate action to correct it. Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588.
For people that are not employees, your employer can only be responsible depending on the amount of control they might have been able to exercise to stop or prevent the offending conduct.
Contact Eldessouky Law for help
If you are experiencing harassing conduct at work and wish to understand how to proceed, contact Eldessouky Law immediately. We have successfully represented hundreds of employees around California and helped them recover fair compensation for the harm done to them. We can help you too. Call us at 714-409-8991 to set up a free consultation with one of our attorneys today.