Harassment

Do You Have A Harassment Case?

What Is Unlawful Workplace Harassment?

Unlawful workplace harassment is unwanted words or conduct related to a protected class. You must be able to show that the unwanted words or conduct has become so severe and/or pervasive (i.e. persistent), that it creates a hostile environment that it affects your ability to work.

Notably, just like employment discrimination, workplace harassment is only illegal if it’s based on a protected class.

What is a protected class? Well, I’ve conveniently outlined a list below.

Legally Protected Classes In California Under The FEHA:
· Disability (mental or physical)
· Medical Condition
· Gender
· Pregnancy
· Race
· Age (over 40)
· Sex (Gender)
· National Origin
· Color
· Religion
· Gender Identity and/or Gender Expression
· Sexual Orientation
· Military and Veteran Status
· Ancestry
· Genetic Information

While there are definitely other laws that govern workplace conduct, unlawful workplace harassment is generally limited to these above protected categories.

Importantly, an employer or supervisor can harass you for anything else that’s not explicitly covered by the FEHA (i.e. your political views, sports team preference, body art or tattoos, drug use, etc.).

This is why it’s important to note that not all harassment and discrimination is illegal – it must be covered by the Fair Employment and Housing Act (Government Code § 12940) in order to be prohibited by law.

What Is Hostile Work Environment?

Hostile Work Environment is simply a type of harassment that can occur (the most common type).

Hostile Work Environment refers to inappropriate behavior in the workplace that is either severe or pervasive enough to create an abusive work atmosphere such that it (negatively) affects your ability to do the job.

What Is Sexual Harassment?

I’ve written a separate page on Sexual Harassment you can read here.

In short, Sexual Harassment is unwanted words or conduct of a sexual nature. Some examples include:

·      Unwanted touching
·      Unwanted sexual advances, such as requests to go on a romantic date or to engage in sexual acts
·      Unwanted sexual jokes or metaphors
·      Telling sexually explicit stories
·      Asking questions about someone’s sex life or dating history
·      Sharing or sending sexual or pornographic material
·      Texting or sliding up in your DMs after-hours

Quid-Pro-Quo Sexual Harassment

Unlike hostile work environment, quid-pro-quo sexual harassment occurs when someone places pressure on a subordinate employee to perform a sexual act in exchange for a workplace benefit (i.e. a promotion, preferential treatment, raise in salary, etc.).

This is just as illegal as hostile work environment sexual harassment.

Is Workplace Bullying Against The Law?

Usually, no.

Unfortunately the law does not prohibit workplace bullying in California if it’s not based on someone’s protected class.

How Do I Stop Workplace Harassment?

1.    Report It In Writing & Follow Procedure (If Any)

The best way stop workplace harassment is to report it in writing to either your Human Resources department or a supervisor or manager that has the power to investigate and correct the issue.

Most all employers have some procedure in place for preventing and stopping workplace harassment (they’re required to). It’s best to follow that procedure, but make sure that you put your employer on notice in writing, as this may become critical evidence in the future.

Important: Make sure that you outline in your complaint how the harassment is related to your protected class. Remember, not all harassment is illegal – in order to be protected by law, you must report harassment related to on or more protected classes (see list above).

2.    Supply Facts, Documents And Witnesses To HR (In Writing) And Cooperate With The Investigation

Once you have put your employer on notice, allow them to investigate and correct the issue. It would be advisable to supply HR or your manager with as much facts, documents and witnesses as you can (again, do it in writing). This may help in the future to show whether your employer’s investigation was “in good faith” or if they simply “went through the motions” in order to clear themselves of any wrongdoing.

3.    Follow-Up As Needed (In Writing) To Report Further Harassment Or Retaliation

Unfortunately, your employer might not be able (or want) to take corrective action against the harasser.  This can be for a multitude of reasons.

If you are lucky, the harassment will stop nonetheless. If you are unlucky, it may not stop and/or you may begin to experience workplace retaliation from the harasser or others.

You must report this in writing immediately, even if you don’t think HR or management will do anything to help. This is necessary to document the harassment and retaliation, which is also illegal and separately actionable. In California, it is illegal to retaliate against an employee for reporting unlawful harassment, even if it turns-out that the harassment wasn’t actually illegal under the law. As long as you had a genuine, good-faith belief that the harassment was illegal, your complaint is protected and your employer cannot retaliate against you for reporting it.  

4.    Consult A Workplace Harassment Attorney

It’s never a bad idea to also consult with a harassment attorney to discuss your options going forward. If you’re still employed, it’s difficult to assert legal claims since most of your damages come from lost wages as a result of termination. Still, it’s advisable to have an attorney apprised of your situation so he or she can possibly add some guidance, review your complaints to management, and be prepared if and when you are terminated as a result.