Harassment In The Work Place

Harassment In The Work Place

© 1999 by Elliott A. Myles, Esq.

THE CASTLEMAN LAW FIRM
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5870 Stoneridge Mall Road, Ste. 207
Pleasanton, CA 94588
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Harassment In The Work Place Is Illegal

Harassment in the work place is illegal under both federal and California state law.

On a federal level, Title VII of the Civil Rights Act prohibits harassment of an employee based on race, color, sex, religion, or national origin; the Age Discrimination in Employment Act prohibits harassment of employees who are 40 or older on the basis of age; and the Americans with Disabilities Act prohibits harassment of employees based on an employee's disability.

On a state level, the principal California statutes prohibiting harassment in the work place are the Fair Employment and Housing Act, which prohibits harassment based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex, and the Labor Code which prohibits discrimination based upon sexual orientation or political beliefs.

These statutes also prohibit retaliation for complaining of discrimination to, or participating in proceedings before, the federal Equal Employment Opportunity Commission or the California Department of Fair Employment and Housing or Labor Board.

What Is Harassment?

There are two basic types of harassment.

The first type is harassment that results in a "tangible employment action," often called "quid pro quo" harassment. This type of harassment occurs when the harassing conduct results in a material change to the employee's terms of employment. An example of this type of harassment would include an employee who is denied a promotion or demoted because he or she refused a supervisor's unwelcome request for sexual favors.

The second category of harassment occurs when the harassing conduct creates a hostile work environment for the employee, and is sometimes called "environmental" harassment. Unlike "quid pro quo" harassment which can occur with just a single incident, the question of whether a hostile work environment has been created is usually a question of degree. An example of this type of harassment would include a supervisor frequently using derogatory terms when referring to a minority or disabled employee.

Neither the federal nor the California statutes prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. However, conduct which may be relatively innocent in small doses may become harassment if repeated or combined with other conduct.

When Is The Employer Liable For Harassment?

As a general rule, the employer is always liable for harassment that results in a tangible employment action and that was committed by a president, owner, partner, corporate officer, or supervisor of the employer.

Under federal law, where the harassing conduct does not lead to a tangible employment action but creates a hostile work environment, an employer is liable for the misconduct of its president, owner, partner, corporate officer, or supervisor, unless the employer can show that:

1. it exercised reasonable care to prevent and promptly correct any harassment; and

2. the employee unreasonably failed to complain to management or to take other steps to avoid harm.

Whether this rule will be applied in California has not yet been decided.

Where the harassment is committed by a non-supervisor co-worker or a third party, generally an employer is liable only if it did not provide the employee with a reasonable avenue for complaint, or if it knew or should have known about the harassment but did nothing about it.

How Should An Employer Protect Itself Against Harassment Claims?

The best defense is to adopt a procedure to identify, prevent and correct harassment.

California law only requires employers to adopt a formal policy with respect to sexual harassment. However, if an employer can show that it adopted a formal anti-harassment policy, that it educated and trained its employees about the policy, and that it consistently implemented the policy, then the employer may be able to show that it exercised reasonable care to prevent and correct harassment. Additionally, an employer who adopts and follows a written policy against harassment also has a strong defense against a claim for punitive damages.