Workplace harassment can take many forms from verbal to physical. Determining whether or not a line has been crossed can be very complicated because an incident that may not be overly bothersome to one person may be devastating to another. The growth of communication methods, such as social media, messaging, texting, and apps, increasingly provide harassers with more ways to track and contact their victims.
Workplace harassment is protected under federal law and California law. Most claims for workplace harassment in California are filed in California State courts under the Fair Employment and Housing Act (FEHA), because it affords most people more protection than federal law. Keep reading to get a better understanding of workplace harassment defined by California law, different types of workplace harassment, and what to do if you have been harassed at work.
The first step in understanding illegal workplace harassment in California is to recognize there is a distinction between harassment that is protected by California employment law and harassment that is not protected by California employment law. In other words, the law does not protect against general bothersome, harassing, or hostile behavior. For example, Merriam-Webster Dictionary defines harassment as conduct “to create an unpleasant or hostile situation for especially by uninvited and unwelcome verbal or physical conduct.” In order to establish a legal claim for harassment at work, we would need to go beyond a dictionary definition of harassment to a legal definition.
So, what does this mean?
The California Government Code defines harassment as an employee being harassed “because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status….”
Breaking down the law further, an employee must be experiencing unwelcome conduct or discrimination from an employer or coworker based on a protected class. Specifically, the unwelcome conduct or discrimination must be based on one or more of the following categories:
California Government Code names these seventeen (17) protected traits, making it illegal for a person to be harassed by an employer or coworker because of one or more of these traits. Although it is not true of all situations, most of the time if the unwelcome behavior happens only once, it will not qualify as harassment. Of course, there are certain types of behavior where one incident will be enough to cross the threshold of harassment.
Workplace harassment can be caused by anyone - executives, coworkers, contractors, and even customers. Generally speaking, the higher the degree of control an employer has over the harasser, the more likely it is that the employer may be held liable. If the harasser is employed by the employer, it is safe to say the employer may be held liable. On the other hand, if the harasser is a customer, it is less likely that the employer may be held liable.
Example: Mom and Pop, Inc. is a franchisor of a national pizza chain. An employee of Mom and Pop, Inc. illegally harasses another employee of Mom and Pop, Inc. Can the national pizza chain be liable for the illegal harassment of Mom and Pop, Inc.’s employee? No, unless the franchisor has “a comprehensive and immediate level of ‘day-to-day’ authority over matters such as hiring, firing, direction, supervision, and discipline of the employee.”
Even if illegal workplace harassment takes place, an employer can only be held liable if they are legally at fault. Establishing the employer is at fault can be established by showing the employer knew or should have known about the illegal workplace harassment and failed to take action. The California Government Code states “harassment of an employee…, other than an agent or supervisor, shall be unlawful if the … , or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”
However, if the workplace harasser is a supervisor, then the law is much more favorable for victims. In such situations, the employer is strictly liable for the supervisor’s illegal conduct - meaning the employee does not have to show the employer was at fault, only that the harasser was a supervisor. The Fair Employment and Housing Act (FEHA) defines supervisor as anyone having authority to “hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively recommend that action…”For more information, see our article on Supervisor Liability for Workplace Harassment.
Example: A senior analyst of a company illegally harasses a junior analyst. The victim does not report to the senior analyst, but rather reports to a supervisor. The senior analyst harasser does not have any authority to hire or fire anyone, has no authority to discipline anyone or recommend discipline, and does not direct the junior analyst in any way. The senior analyst would not be considered a supervisor. The company would not be strictly liable for the senior analyst’s conduct. However, if the employer knew or should have known about the harassment and failed to take immediate and corrective action, the employer could be found liable.
Workplace harassment can take on various forms (such as physical or verbal) and come from different sources. Harassment can be physical, sexual, or verbal.
Physical harassment can include hitting (battery), the threat of hitting (assault), and various other forms of physical contact, such as: groping, pushing, shoving, embracing, and other forms of unwanted touching. Usually, one of the most common aspects of sexual harassment is physical harassment, whether it is groping or other forms of unwelcome touching.
Sexual harassment has made the news a lot recently due largely to the #MeToo Movement, which brought more awareness to sexual harassment in the workplace. Sexual harassment can involve both verbal and physical harassment. So, what constitutes sexual harassment? What should you do, if you are a victim? How can you make it stop?
Sexual harassment in California falls into two categories: quid pro quo sexual harassment or hostile work environment sexual harassment. You can read more about them here. Quid pro quo sexual harassment typically involves either an offer or a threat. When a supervisor offers an employee a raise if they perform a requested sexual act or threatens an employee with a demotion if they do not perform a requested sexual act are both examples of quid pro quo sexual harassment. Unlike other types of harassment, even one occurrence of quid pro quo sexual harassment can be enough for a valid claim.
Example: The President of a company offers to give an employee a promotion in exchange for sexual favors. This would be considered quid pro quo sexual harassment.
Example: The President of a company grabs the buttocks of an employee. While this would not be considered quid pro quo sexual harassment, it could be considered hostile work environment sexual harassment, if the conduct is considered severe or pervasive under the law.
Hostile work environment sexual harassment, unlike quid pro quo sexual harassment, involves repeated unwelcome, unlawful behavior that creates a hostile work environment. California courts have established four factors that determine the degree of pervasiveness of the sexual harassment: nature of conduct, frequency, number of days, and context.
Issues arise when conduct occurs that could be okay with one person but be considered sexual harassment by someone else. California courts look at the situation as a whole and look to see what type of harassment occurred: physical, verbal, visual, or sexual advances and over what type of period the behavior occurred. If you think you have been the victim of sexual harassment, contact your human resources department or supervisor. California law protects all employees, and your employer has a legally duty to stop sexual harassment.
Often the most common type of harassment is verbal. Verbal harassment can range from name calling to physical threats of violence. Not all talk, even in poor taste or unpleasant, is considered harassment. However, it just takes the unwelcome conduct to cross over into one of the protected traits, and you could be dealing with a verbal harassment claim.
Example: Over the course of two years, a supervisor regularly and repeatedly called an employee a dumb Latino. Starting with the very first incident, the employee told the supervisor he found it extremely offensive and asked the supervisor to stop the name calling. Since the offensive verbal conduct is based on a protected class (race) and the conduct was pervasive, the employer could be held liable.
For additional information on what kind of behavior is considered illegal and amounts to workplace harassment in California, see this article here.
The first question most people are faced with in this unfortunate situation is “What do I do now?” All too often, the answer is “Nothing.” However, with knowledge and an increasing movement to stand up for victim’s rights, hopefully, victims of workplace harassment are deciding to stand up for their rights and hold perpetrators accountable. There are a number of steps you could take to address harassment in the workplace. If you have been harassed or feel you may have been harassed, contact our office for a free review of your case.
Everyone has a right to work in an environment free from harassment. California law protects you when those rights have been violated. For help filing or pursuing a claim for workplace harassment, call Optimum Employment Lawyers at (949) 954-8181. All consultations are free and confidential. We will gladly explain your rights and options available to you.
Patterson v. Domino’s Pizza, LLC (2014) 60 C4th 474,499.
Cal. Govt. Code § 12940(j)(1).
Cal. Govt. Code § 12960(t).
Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 610.
Cal. Govt. Code § 12940(k).