Harassment in the Workplace
Harassment at work isn’t just annoying, it’s a violation of an employees’ rights. What exactly is harassment? Most people think they know, but it actually has a precise legal definition. This webpage discusses the following topics related to harassment at work:
- What is harassment? Understanding the definition of harassment in California
- What is harassment in the workplace and what does the law cover?
- Is your work environment hostile?
- What to do if you’re a victim of harassment at work?
- What is the employer’s responsibility in preventing workplace harassment?
- Working with an employment attorney to take action against your employer
What is Harassment? Understanding the Harassment Definition
Harassment in the workplace can come from a co-worker, supervisor, or even someone who is not an employee of the company, such as a customer, client or vendor. In fact, the victim of harassment at work doesn’t even have to be the recipient of the harassment, but can be anyone who is exposed to it and feels offended by the harasser’s conduct. What is harassment to the California courts? To be unlawful, according to the harassment definition from the Department of Labor, the harassment in the workplace must be unwelcome AND based on the employees’ protected status. In addition, the conduct must have been:
- subjectively abusive to the person affected; and
- objectively severe and pervasive enough to create a work environment that a reasonable person would find hostile or abusive.
Whether an instance or a pattern of harassing conduct is severe or pervasive is determined on a case-by-case basis, with consideration paid to the following factors:
- the frequency of the unwelcome conduct;
- its severity;
- whether the conduct was physically threatening or humiliating, or only offensive words and phrases;
- whether the conduct unreasonably interfered with the victim’s work performance;
- the effect on the employee’s psychological well-being; and
- whether the harasser was a superior within the organization.
The California FEHA Harassment Definition divides workplace harassment into several categories[1]:
- Verbal harassment comes in the form of derogatory comments or use of slurs, unasked for romantic advances, sexual comments or jokes, and even prying into an employee’s personal life
- Physical harassment includes any type of unwanted touching (yes, unwanted hugs too), assault and physical interference with work or movement
- Visual harassment is when an employee is harassed with derogatory cartoons, drawings, lewd gestures or leering
- Sexual favors are actions of unwanted sexual advances, that have a condition of doing sexual favors in order to have employment benefits
Examples of workplace harassment
- Elshazly v. Superior Court of Solano County – This case is an example of verbal harassment by use of racial slurs on two employees. One plaintiff, Elshazly, had reported the harassment to the employer, yet nothing was done. The other plaintiff, Blackwell, alleged that he was constantly harassed including one incident of physical harassment – his supervisor grabbed him by the back of his shirt collar
- Bikram Yoga founder, Bikram Choudhury, was brought to court because of his sexual harassment towards his former lawyer. He repeatedly harassed her and she had to listen to his vulgar comments about women.
What is Harassment in the Workplace and What Does the Law Cover?
To answer the question, “what is harassment?” you must understand that the law prohibits mean behavior only if the employees are being harassed because of a protected class. That means that not all bullying behavior is illegal. For example, a bad supervisor who rudely asks you to work last minute every day or a co-worker who talks a lot about how much money her boyfriend makes. These actions might be annoying but they are not harassment. In order for the harassment to be unlawful, it must be based on one of these protected classes:
- Ancestry
- Color
- Age (if over 40 years old)
- Gender
- Marital status
- Medical condition
- National Origin
- Physical or mental disability
- Race
- Religion
- Sex
- Sexual orientation
You may have noticed we didn’t cover sexual harassment here. We cover sexual harassment in expansive detail here.
Is Your Work Environment Hostile?
You might feel that your work place is hostile because of a bad boss, lack of benefits, no paid vacation time, or rude customers, but there are legal criteria that must be met before there is a truly, hostile work environment. Here are several of the things from the harassment definition that California courts will use to determine if there is indeed a hostile work environment:
- The harassment must be based on a protected class (as listed above)
- How severe or physically threatening was the harassment?
- Was this harassment frequent?
- Are there witnesses to this harassment or discrimination?
- Was the harassment distracting to the victim, to the point where he/she couldn’t complete his/her job responsibility?
Not all of the things that you think are harassment is unlawful. Hostile work environments make employees dread or even fear going to work because of the harassment.
What to Do if You’re a Victim of Harassment at Work?
If you are a victim of harassment at work because of a co-worker, supervisor, or anyone else in the workplace, you need to report the harassment to your employer. It’s common for a victim to not want to file a formal complaint because of what they think might happen. It’s understandable that the employee may be concerned about his/her work status or professional relationships after the complaint. But it’s extremely important that harassment in the workplace be reported. When you file a complaint, you are protecting your rights and yourself.
Below are the steps you should take if you are the victim of workplace harassment:
- File a complaint with the HR department of your company – if the offender does not stop the problem, you need to make this internal complaint to HR (in writing). You should do this immediately if you fear for your safety. When you file a complaint with HR, you allow them to investigate the harassment and make efforts to resolve the harassment.
- Generally, your lawyer would file and administrative charge with a federal and/or state agency, such as the DFEH. Filing an administrative charge is not filing for a lawsuit, rather you are notifying the federal and/or state agency about the harassment. Filing with a federal or state agency, and obtaining a right-to-sue letter, is a necessary step before you can file a lawsuit. Without doing so, your lawsuit will automatically be thrown out. Once you file this charge, the agency will notify your employer and then either dismiss, investigate, request that you and your employer work together to settle or mediate the dispute, or it may take other action. It is possible that the agency may file a lawsuit on your behalf, but this is extremely rare and only happens in extraordinary circumstances.
- File a lawsuit – Once the agency is done investigating and you do receive a right to sue letter, you can file the lawsuit for workplace harassment. There is a small window of time in which you can file the lawsuit, from the date you received the right to sue letter. Talk to a harassment lawyer about this immediately.
Filing a lawsuit against your employer for workplace harassment requires you to make very important decisions, such as where, when, and how. Talking to a lawyer will help you better understand your workplace rights and assess the strength of your claims in court.
What is the Employer’s Responsibility in Preventing Workplace Harassment?
The Fair Employment and Housing Act requires that employers take “all reasonable steps necessary to prevent discrimination and harassment from occurring.”[2] An employer is responsible for the harassment in these cases:
- Harassment by a supervisor that ends in termination, failure to promote, failure to hire, or loss of wages, the employer is automatically liable
- When a supervisor makes requests to the employee for sexual favors in exchange for work benefits, the employer liable. This is because the supervisor acts on behalf of the employer when managing employees
- When non-supervisory employees that is under the control of the employer (co-workers, customers, contractors, etc.) are the harassers AND the employer knew (or should have known) of the harassment but did not take any action to stop it from happening again
The employer is not liable when:
- The employer knows about the harassment by a supervisor and can provide proof that 1) it made reasonable efforts to stop the harassment; and 2) the employee made unreasonable choices not to take advantage of preventive or corrective opportunities that the employer has provided
Does Worker’s Compensation Laws Apply to Harassment at Work?
Typically, worker’s compensation laws do not apply to harassment cases. However, there are certain facts in a harassment case that would make the lawsuit open to the workers’ compensation system. When the harassment has become so much that it affects the employee’s psyche, the worker can claim emotional or mental distress. This can arise from hostile work environment situations; the employee suffers from emotional injuries or stress that cause him/her to need to take time off of work and unable to perform their job duties. If an employee suffers a breakdown after being subjected to harassment, this qualifies as a compensable injury through workers’ compensation.
Working with an Employment Attorney to Take Action Against Your Employer
Call us to talk to one of our employment lawyers who can assess your case and let you know what steps you need to take to move forward. We can help you filing an administrative charge/lawsuit or even work with you to mediate between you and your employer to resolve the issue outside of court.
Footnotes:
[1] California Code of Regulations § 11019. Terms, Conditions and Privileges of Employment.