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What is Harassment in the Workplace?
Who is Protected Against Discrimination Under California Law?
What Type of Conduct is Considered Harassment?
Los Angeles Harassment and Sexual Harassment Attorney
Within the last couple of years, California has passed legislation strengthening the state’s anti-harassment laws. These protections extend to any employee in the company and cover a broad range of protected characteristics. Below, we will discuss workplace harassment, sexual harassment, and when you can file a lawsuit against your employer for failing to maintain a safe work environment.
What is Sexual Harassment?
Sexual harassment is divided into two subcategories. The first is what you would call traditional sexual harassment, or quid pro quo sexual harassment. Quid pro quo sexual harassment is when an individual in a supervisory role makes an offer to an employee in exchange for sex or a date.
In other cases, an employee can file a lawsuit on the grounds that their work environment is hostile. To launch a successful hostile work environment lawsuit, you must prove that you are afraid to come into work or otherwise intimidated while at work. To prove this in a court of law, you must show that the harassing conduct was either severe or pervasive.
What is Harassment in the Workplace?
When most people think of hostile work environment lawsuits, they think of sexual harassment. But harassment in any form in the workplace is prohibited. It is also actionable if the conduct is either severe or pervasive.
Furthermore, the conduct does not need to be initiated by a supervisor as it would be in a quid pro quo lawsuit. Another employee, an independent contractor, even a client or customer can be the reason why a harassment lawsuit is filed against an employer. However, the burden of proof is higher than a quid pro quo lawsuit and the conduct must be pervasive or extremely serious.
Who is Protected Under California Law?
Federal law sets the guidelines for anti-discrimination legislation and certain characteristics are protected. These include:
- Nation of origin/ancestry
- Marital status
Notice that these provisions do not cover sexual orientation or gender expression. California law, on the other hand, has routinely interpreted sex and gender protections as extensible to the LGBT community. It is therefore unlawful for employers to discriminate on that basis or allow a culture of discrimination, bullying, and harassment to fester on their watch.
California protections also preclude discrimination on the basis of military status, political affiliation, and are more expansive than federal protections as regards traditionally ethnic dress or hairstyles such as dreadlocks.
Sexual Harassment and Hostile Work Environments
Throughout the years, case law has determined what types of incidents are actionable. While quid pro quo sexual harassment is clearly defined, hostile work environment lawsuits rely on a totality of circumstances to determine whether or not a plaintiff was the victim of workplace harassment.
For example, if a woman enters a workplace where the culture allows for crude jokes, flirtation between staff, or inappropriate conduct between staff members, a woman may not necessarily need to be the person who was the object of the harassment in order to file a lawsuit. The workplace environment alone would make her feel uncomfortable or intimidated.
As an example, let us say that a supervisor offers a job to an individual with whom he has a sexual relationship. This could lead other women in the workplace to believe that they too must have sex with supervisors in order to get promotions. If this extends on a long enough timescale and is pervasive enough, it can be construed as a threat. The only way to advance in the company is by having sex with a supervisor. If you do not have sex with the supervisor, you will not get promoted. This is a hostile work environment that gives out workplace promotions based on employee compliance with sexual requests.
Other Forms of Workplace Harassment
Harassment can be sexual and very often is. In other cases, harassment is a form of bullying that is committed by several employees against one or more employees on the basis of an illegal kind of discrimination.
As an example, let us say a predominantly white office has a handful of black employees. The culture tolerates and permits some employees who routinely make fun of, joke about, or otherwise make insensitive jokes toward the black employees. This goes on for a while despite the fact that the black employees clearly are not amused by the racially insensitive jokes. This is an example of a hostile work environment.
Mandatory Sexual Harassment Training for All Employees
California law requires that all employers provide sexual harassment training to their staff. This includes availing them with methods for reporting and resolving issues that they have in the workplace.
The first legislation of this sort, AB 1825, was passed in 2005 and made sexual harassment training mandatory for employers with more than a specific number of employees. The provisions of this law were extended in 2015 AB 2053 and included training on “abusive conduct.” In 2016, provisions of the Fair Employment and Housing Act (FEHA) were clarified and expanded. In 2018, the provisions were expanded to include mandatory training concerning gay and transgender employees. More recently, FEHA was expanded to include all employers with more than five workers.
Federal Versus California Anti-Discrimination Rules
As you might imagine, California’s rules when it comes to workplace sexual harassment and hostile work environments are much more expansive than federal laws. For that reason, most lawsuits in the State of California are filed in state courts as opposed to federal ones. Further, the standard of proof in a California harassment lawsuit is lower than it would be in a federal lawsuit.
In California, we use an “abusive conduct standard.” At the federal level, an employee must be afraid to go to work under the conditions he or she is laboring
What Type of Conduct is Considered Harassment?
For certain types of lawsuits that involved forced and unwanted sexual contact or quid pro quo sexual harassment, the conduct is fairly obvious. In general, workplace harassment covers far more territory.
Since the law requires employers to provide sexual harassment training to their employees and provides a framework for handling workplace harassment, any deviation from this practice could be reason to file a lawsuit against an employer.
To understand this, you need to know what is expected of your employer.
- Discrimination and harassment – Any employee who is subject to discrimination or harassment by a supervisor, employee, or even a contractor or customer should first indicate to the offending individual that their behavior is unwelcome. If they are uncomfortable doing so, they can report the incident to human resources. Human resources must acknowledge the incident and then conduct an investigation. Once that investigation has concluded, the company is responsible for telling all affected parties the result of that investigation. If the investigation reveals that harassment did occur, the employer must do something to remedy the situation.
- A “reasonable person” would find the conduct abusive or hostile – The “reasonable person” standard is used throughout law as a bar to avoid spurious lawsuits. In other words, a hypersensitive person overhearing an off-color joke would not be grounds for a harassment lawsuit. The conduct must be abusive or hostile.
- The conduct is pervasive – If the conduct is committed continuously on an everyday basis, that would be grounds for a harassment and discrimination lawsuit. If the conduct was isolated or sporadic, it would not be grounds for a harassment lawsuit unless the conduct was egregious enough. For instance, any unwelcome sexual contact or abuse would be considered grounds to overcome the “pervasive” litmus.
Examples of Harassment That May Not be Obvious
Someone touching you inappropriately or refusing to take ‘no’ for an answer are obvious grounds for a sexual harassment lawsuit. But others are more subtle. Examples of these include:
- Sharing sexual photos, openly discussing sex, making sexual comments, or making sexual jokes are all examples of behavior that could rise to the standard of workplace sexual harassment.
- Making racist, sexual, or homophobic jokes, using racial or other slurs.
- Invading a worker’s personal space in a sexually threatening manner.
- Offering unwanted comments about another employee’s appearance.
- Bullying of any kind either on work hours or off work hours.
What Should I Do if I Have Experienced Workplace Harassment or Sexual Harassment?
The first thing that you need to do is make the individual aware that the behavior is unwelcome. Then, you will want to report the issue to your supervisor or human resources. If human resources does not take action to remedy the situation, or the situation continues even after they have conducted an investigation, then it is time to call a skilled Los Angeles employment attorney.
If you have been the victim of workplace sexual harassment, racial harassment, bullying, or gender discrimination (including LGBT harassment) call Jamie Wright, Esq today to schedule an appointment. We will go over your complaint and keep a written record of how your employer responded and what their investigation revealed (if they bothered to conduct one). Call early in the process so we can document each event as it unfolds and we can hold your employer accountable for failing to obey the law.
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8939 S. Sepulveda Blvd. Suite 102, Los Angeles, CA 90045