What is unlawful harassment?

As part of the Fair Employment and Housing Act (“FEHA”), California Government Code §12940 makes it unlawful “For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, 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, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract.”

In other words, if you are being harassed because you are a Latina or have a disability, or because one or more of those categories listed, it might be unlawful harassment.

On the other hand, if you are being harassed because your boss is a micro-manager or just an all-around jerk, it may be difficult to bring a harassment claim. For example, suppose that your boss has completely unrealistic goals and is constantly on you for not achieving them. If the boss does that to everyone or only does it to you for reasons that do not have to do with being a member of a protected class, you may have a bad working environment – but not a harassment claim.

What type of conduct constitutes harassment?

Harassment under the FEHA is defined as:

1. verbal harassment, such as epithets, derogatory comments or slurs (or repeated romantic overtures, sexual comments and jokes or prying into one’s personal affairs);

2. physical harassment, such as unwanted touching, rubbing against someone, assault and physical interference with movement or work; or

3. visual harassment, such as derogatory cartoons, drawings or posters or lewd gestures. (2 Cal.C.Regs. § 11019(b)(1).)

Are insults or bad language harassment?

This depends on how the language is used. If the boss says, ‘You stupid [insert racial/gender slur]!’ That could be an act of unlawful harassment. In Steiner v. Showboat Operating Co.(9th Cir. 1994) 25 F.3d 1459, 1463–64, the evidence showed that although the alleged harasser was abusive to men, his abuse of women was different. His abuse of men did not relate to their gender. On the other hand, his abuse of female employees centered on the fact that they were females. “It is one thing to call a woman ‘worthless,’ and another to call her a ‘worthless broad.’”

In general, Title VII (the federal law prohibiting workplace discrimination) and the FEHA are not a ‘civility codes’ “designed to rid the workplace of vulgarity.” (Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 161.) While the FEHA prohibits harassing conduct that creates a work environment that is hostile or abusive on the bases of the protected categories, it does not prohibit coarse and vulgar language or conduct that merely offends. (Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 295.)

Are there different types of sexual harassment?

Generally, there are two types of sexual harassment: quid pro quo and Hostile Environment Harassment.

Quid pro quo harassment may take place where a supervisor’s requests for sexual favors are linked to the grant or denial of job benefits, such as getting or retaining a job, or receiving a favorable performance review or promotion. (Meritor Sav. Bank, FSB v. Vinson (1986) 477 US 57, 65.) Usually the request for sexual favors is made with an express or implied threat that if the person does not give in, some aspect of their job will be hurt, or if they do give in, their job will improve in some way. Quid pro quo harassment may be thought of as the ‘casting couch’ scenario.

To make a claim for quid pro quo sexual harassment, an employee must prove: that she or he was subject to unwelcome sexual advances, conduct or comments by a supervisor with immediate or successively higher authority over the employee; that the harassment complained of was based upon sex; and that the employee’s reaction to harassment complained of affected tangible aspects of the employee’s compensation, terms, conditions or privileges of employment.

It is also important to remember that even if the employee gives in to the sexual advances, she or he may still be able to make a claim for sexual harassment if the employee submitted to a relationship only out of fear of losing a job benefit.

One occasion of an unwelcome sexual advance by a supervisor linked to the granting or withholding of job benefits may support a quid pro quo claim. (Burlington Industries, Inc. v. Ellerth (1998) 524 US 742, 753-754.)

Hostile Environment Harassment happens when an employee was: subjected to unwelcome sexual advances, conduct or comments; the harassment complained of was based on sex; and the harassment was “so severe or pervasive” as to “alter the conditions of the victim’s employment and create an abusive working environment.” (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 608.)

An employee is not required to show the loss of tangible job benefits or actual injury. (Harris v. Forklift Systems, Inc. (1993) 510 US 17, 21.) Further, the employee does not have to show that she or he suffered a psychological injury. (Harris v. Forklift Systems, Inc. (1993) 510 US 17, 22.)

Are there other laws that prohibit harassment?

California Civil Code § 51.7 grants all persons a “right to be free from any violence, or intimidation by threat of violence, committed against their persons or property” because of their race, religion, national origin, disability, sexual orientation, etc. Civil Code §§ 52.1, 52.4 and 52.45 authorize private civil actions to enforce these rights, expressly including “gender violence” and “sexual orientation violence.”

In conclusion, harassment claims take many forms and rely on a variety of factors. It is not possible to address every situation. Sometimes rude comments and conduct are just that and not harassment under the law. Other times, what looks like a quid pro quo claim may be better brought as a Hostile Environment Harassment claim. It is important to seek legal advice to determine if you have a claim.

STATUTE OF LIMITATIONS WARNING

There are limited time periods (deadlines) for filing claims that apply to legal matters. If you do not file in a timely manner with the appropriate internal office, outside agency or civil court, you may lose the right to seek redress for the claim. You should seek the advice of counsel to ascertain all of the applicable time periods.

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You should immediately consult with an experienced attorney to learn more about what you can do to protect your rights and when the deadlines (statutes of limitation) expire in your specific case.

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