Am I being harassed at work?

We receive numerous calls from employees concerning their treatment in the workplace. Many of those who call feel they are working daily in a “hostile work environment”. They believe they are being harassed. While often horrific for the employee, these situations often lack the factors necessary to support litigation against the employer.  The offending employer simply haven’t crossed the line into speech that constitutes harassment under the law. For the purposes of this article, we will try to outline just what is, and what is not, actionable as “harassment.”

Harassment takes many forms, but the primary factors that must currently be present are

(1) the conduct must be unwelcome; (2) the harassment must be shown to have occurred because of the person’s class or status;  (3) it affected the terms or conditions of employment; and (4) it was imputed to the employer. 

To impute harassment to the employer, the harasser typically must be a company owner, operator, manager or supervisor.  If the harasser is a co-worker, the claimant must establish that the employer knew about the harassment but did nothing to prevent it.  Under certain circumstances, a person may claim harassment even if he simply witnessed the harassment of another, provided other elements of the claim exist.

To establish discrimination, evidence must show: (1) the person was an actual or perceived member of a protected class; (2) performing satisfactory work; (3) subjected to an adverse employment action or treatment (fired, laid off, not promoted, denied a particular job assignment, harassed, etc.) that other non-protected coworkers doing substantially the same work were not subjected to or that the person was replaced by a non-protected person.

“Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.”[1]

General Harassment or “Workplace Bullying” –

• is not currently unlawful in the State of California, and although some states have tried to enact legislation to curtail it, but currently, it remains legal to have a “terrible boss” throughout the nation. There are, however, some ways in which this behavior may cross the line into illegal behavior.

• IT CONSISTS OF:
  • Targeting the weak: If the bully is targeting only disabled, pregnant and/or older employees then there may be grounds for litigation. Targeting these protected categories may cross the line into illegal discrimination.
  • Targeting the different: If you’re being targeted along with others of the same race, sex, religion, national origin, or color, and the rest of the work staff is left alone by the offending supervisor or co-worker, then the bully may be engaging in illegal discrimination.
  • Sudden change in bully’s behavior: If you weren’t the bully’s target and suddenly are, maybe something changed for you. Did you recently turn 50? Take Family and Medical Leave? Return from military service? Make a worker’s compensation claim? Find out about a genetic condition? If so, the bully might be breaking discrimination, retaliation or other laws.
  • Stalking: California has anti-stalking laws that may prohibit the bully’s behavior, depending on it’s severity. See Cal Civ Code § 1708.7 (2014)  Stalking. There are also specific cyberstalking laws in some states. If you believe this behavior has crossed the line into illegality, contact a criminal attorney and file a police report against the offending individual.
  • Assault/battery: If anyone at your place of employment actually makes you fear for your physical safety, or that you are about to be struck or otherwise harmed, that may be assault. If the bully has actually engaged in offensive or harmful touching or hitting, they have likely committed battery. Both assault and battery are against the law in every state.

The instances above are ways in which “bullying” may translate to unlawful behavior under the current laws. But it is still the case that, the mere verbal abuse by a co-worker of a subordinate or colleague is not considered unlawful unless the harassing conduct can be tied to one of the following: Gender, Pregnancy or Maternity, Gender Identity/Sexual Orientation, Religion, Race,- Physical or Mental Disability, Age.

Unlawful Harassment & Protected Categories –

Some forms of harassment from which an employee is protected by law can be subtle, others can be blatant.  In today’s workplaces, the former is far more common. When reading the following examples, note that many laws protecting employees from such behavior apply only to companies consisting of  fifty (50) or more employees.

Examples of prohibited behavior in various categories are outlined below.

Gender –

• discrimination against anyone for his or her sex. It can include the disparate treatment of a person who is pregnant, or a person who is in a job typically held by males, such as a police officer or firefighter.  If a woman is perceived to be unable to perform certain physical tasks without actually being tested on those tasks, then that is discrimination based on her gender.  An employer cannot make the assumption that a female is incapable of performing any task merely by concluding it must be true because she is female.

This type of discrimination can also take fairly subtle forms, e.g., you apply for a position for which you know you have excellent qualifications, but you are turned down in favor of a male candidate, and find out later that the clients “prefer working with men” or, similarly, you apply multiple times for a promotion you have been told you are qualified for, yet every time the title goes to someone of the opposite gender. If you find yourself in this position, you may need to provide your attorney with witnesses to the statements that prove you were passed over due to your gender.

Pregnancy and Maternity leave –

• provided you have worked in a job for at least twelve (12) months, you are protected against discrimination should you exercise your right to take leave under Federal or State law.  Perhaps you have taken maternity leave, and returned to your job only to find that your position has changed, you are no longer given as much responsibility, your pay may have decreased and a male co-worker who was given most of your duties while you were out, is now retaining many aspects of your position, or shortly after returning, you are fired because your job “has been phased out” yet you discover that another person is ultimately hired for your position.

Sexual Orientation –

•  while Federal law may remain behind the times in this area, in California is it unlawful to be discriminated against for being lesbian, gay, bi-sexual or transgender.  Any harassment or differential treatment based on someone’s perceived or actual gay, lesbian, bi-sexual, or heterosexual orientation may be grounds for an action for discrimination under this law. Examples of differential treatment might be an employer asking questions about someone’s sexual history or their sexual orientation, and then failing to promote, or even terminating that person after finding out they may be gay.

Gender Identity –

•  trans-gendered persons are protected under California law.  It is unlawful for an employer to ask questions about someone’s sexual history or their sexual orientation.  Likewise, it is wholly inappropriate to make offensive comments about someone’s sexual orientation or gender identity in the workplace.  A trans-gendered person is protected from being forced to use a restroom which does not match the gender to which they identify.  Similarly, while a trans-gendered person can be asked to wear a uniform utilized at their place of employment, they cannot be forced to dress in a manner that does not conform to the gender to which they identify.

Sexual Harassment –

• perhaps the most well known of the varieties of unlawful discrimination, but it is important to note that it goes beyond the crude jokes, desktop pornography, or other inappropriate interactions that have become so familiar in the job lexicon. It can also manifest in a failure to promote based on sex, or by an employer allowing an environment that most women (or men) would find “hostile.”  For example, when an unusually shapely female is taken aside by Human Resources because her clothing is “too suggestive” and the men find it “distracting” when she is dressing in a manner similar to all other employees, it may be gender discrimination.  It is not her responsibility to “look more masculine” but that of the employer to educate the males in that environment to keep their attentions on the tasks at hand.

Race & National Origin –

• although many would insist we are living in a “post racial” society, the number of cases the EEOC has litigated in the past decade would, unfortunately, support the opposite conclusion.  Incidents of nooses and Civil War flags being displayed in prominent places in workplaces where African Americans are employed across America[2] and other such blatant racial discrimination are on the rise.

Other examples of such unlawful behavior in the workplace would be the use of racist slang or nicknames known to be offensive to persons of various ethnicities; comments made based on physical or cultural traits, such as clothing, skin color, language or even an unfamiliar accent; or the display of racist drawings or posters. Employees are also protected from discrimination based on perceived national origin, even if that assumption is incorrect, for example, if you fire someone you believe is Japanese only to learn that they are in actuality Korean, or vice versa.

Religious –

•  the culture of fear brought on after the events of September 11, 2001, has given rise to more incidents of religious discrimination. The Supreme Court recently upheld that a young woman who was denied employment for wearing her hijab in the workplace, because it was “against their dress code” was wrongfully discriminated against.  In California, persons of a particular faith have a right to express their beliefs and to follow their religious practices, including those expressed in dress and grooming, without interference. Other common methods of discrimination, including negative comments about an employee’s personal religious beliefs, or trying to convert them to a certain religious ideology are all currently unlawful.

Disability –

• workplace discrimination against people with disabilities is currently prohibited by both state and federal law. If the employee can demonstrate that he or she can perform the essential functions of the job; and any necessary accommodation is “reasonable” then the employer must accommodate and cannot refuse to hire, nor can they terminate the disabled employee due to disability.  If you’re a caregiver for a disabled child, parent or spouse, you are also protected against many forms of discrimination. It is important also, to remember that an employer cannot discriminate based on a concern for a possibility of future harm to the person or to others employed with the disabled person; or concern that such employment of a person with a  disability will cause an employer’s insurance rates to rise.

***

With current law being what it is, it is important to note that workplace bullying alone, unless it is compounded with one or more of the factors above, is not yet illegal.  While it is not something which most believe should not occur in the American workplace, the law has not caught up to that belief. If you are interested in finding out more about the proposed legislation, in California or nationwide, visit The Healthy Workplace Bill website and join the fight to get legislation passed.  If and when such a law is eventually passed, it is likely that it would require the employee to document with medical records, a negative physical response to such abuse, such as insomnia, nausea, high blood pressure, or other stress related illnesses and a doctor’s assessment that such symptoms were a result of the workplace environment.  As of now, California has on the books only mandatory workplace training to educate personnel against bullying on the job.  A small step, but a step nonetheless.

If you feel you have experienced workplace discrimination in any of the foregoing categories, please call the team at Lazear Mack for a free consultation.

Lazear Mack, LLP
Employment Law Attorneys
436 14th Street, Suite 1117
Oakland, CA

510-735-6316

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