Harassment

Both Federal and State law prohibit harassment of employees or applicants based on any classification protected by Federal law or by FEHA.

Harassment includes, but is not limited to:

• Verbal harassment - epithets, derogatory comments, or slurs;
• Physical harassment - assault, impeding or blocking movement, or any interference with normal work or movement;
• Visual forms of harassment - derogatory posters, cartoons, or drawings; and
• Sexual favors - unwanted sexual advances that condition an employment benefit on an exchange of sexual favors.

Employers must take all reasonable steps to prevent harassment. Loss of tangible benefits is not necessary to establish unlawful harassment. Thus, hostile or unwelcome sex-linked conduct that deprives an employee of a work environment free of harassment is unlawful, whether or not the conduct also results in the loss of some more tangible employment benefit, such as promotion, a pay increase, or employment itself.

Harassment may cause adverse employment decisions and the loss of tangible employment benefits, but it may also be unlawful even in the absence of economic loss if it creates a hostile work environment.

Liability for Harassment

Under FEHA, employers are strictly liable for the harassing conduct of their agents and supervisors. In this context, a supervisor is an individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, to adjust their grievances, or effectively to recommend that action, if the exercise of that authority is not of a merely routine or clerical nature but requires the use of independent judgment.

Under Title VII, an employer is subject to liability to an employee for an actionable hostile environment created by a supervisor with authority over the employee. If no tangible employment action is taken against the employee in conjunction with the harassment, the employer may raise a defense,

• That the employer exercised reasonable care to prevent and correct promptly any harassing behavior; and
• That the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

This defense is not available, when the supervisor's harassment results in a tangible employment action, such as discharge, demotion, or undesirable reassignment. Also, a tangible employment action for this purpose occurs when the supervisor threatens the employee with discharge and, in order to avoid the discharge, the employee complies with the supervisor's demands that the employee engage in sexual activity

An employer may be liable under FEHA and Title VII for harassment by non-supervisory employees and non-employees when the employer or its agents or supervisory employees knows or should have known of the conduct and fails to take immediate and appropriate corrective action.

In cases involving harassment by non-employees, factors to be considered include the extent of the employer's control, and any other legal responsibility that the employer may have with respect to the non-employee's conduct.

Employee Personal Liability

Supervisors are personally liable for sexual harassment under FEHA if they participate personally in the harassment or aid or abet it by failing to investigate or remedy it. Any employee of a business subject to FEHA is personally liable for harassment in violation of FEHA perpetrated by the employee, regardless of whether the employer or business knows or should have known of the conduct and fails to take immediate and appropriate corrective action. Moreover, the harassing coworker may also be personally liable to the harassment victim under other statutes or tort theories.

Indemnification

An employer may be required to indemnify a supervisor for legal costs, including attorney's fees, incurred in successfully defending against a harassment suit brought against the supervisor by a coworker if the conduct giving rise to the suit was within the course and scope of the supervisor's employment.

National Origin Harassment

FEHA prohibits harassment based on ancestry or national origin or based on a perception that the employee has, or is associated with one who has, a particular ancestry or national origin.

National origin harassment is a violation of Title VII, and an employer has an affirmative duty to maintain a work environment free from such harassment. Ethnic slurs and other verbal or physical conduct relating to an individual's national origin constitute harassment when this conduct,

• Has the purpose or effect of creating an intimidating, hostile, or offensive working environment;
• Has the purpose or effect of unreasonably interfering with an individual's work performance; or
• Otherwise adversely affects an individual's employment opportunities.

Racial Harassment

FEHA prohibits racial harassment including harassment based on a perception that the employee is, or is associated with one who is, of a particular race. A racially hostile working environment also violates Title VII.

Sexual Harassment

Persons Protected

FEHA prohibits harassment because of sex, which includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.

FEHA also prohibits harassment based on an employee's sexual orientation or on the perception that the employee is, or is associated with one who is, of a particular sexual orientation. Same-gender sexual harassment, as well as opposite-sex harassment, is prohibited by FEHA.

Types of Sexual Harassment

Harassment because of sex may take the form of verbal, physical, or visual harassment, as well as unwanted sexual advances.

There are two categories of sexual harassment:

1. "Quid pro quo'' harassment, and
2. Hostile work environment harassment.

Quid Pro Quo Harassment

Quid pro quo harassment occurs when an employee shows, by a preponderance of the evidence, that submission to sexual conduct was made a condition for receiving concrete employment benefits or for the avoiding of job detriment.

Hostile Work Environment Harassment

Hostile work environment sexual harassment is established if the employee establishes all of the following:

• The employee was subject to unwelcome sexual harassment;
• The harassment was based on sex;
• The harassment was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment; and
• The relationship between the employer and the person or persons committing the acts of harassment is legally sufficient to impose liability on the employer.

In determining whether the sexual conduct is sufficiently severe or pervasive to constitute a hostile work environment, the focus is on the perspective of a reasonable person with the same fundamental characteristics as the employee.

To be actionable, harassment must be sufficiently severe or pervasive to alter the conditions of the employee's employment and create an abusive environment.

Although a single instance of sexual harassment might be sufficient to establish a hostile work environment, the required showing of severity or seriousness of the conduct increases as the number of incidents decreases. Whether an environment is sufficiently hostile or abusive must be judged by looking at all the circumstances, including the following:

1. The frequency of the discriminatory conduct;
2. Its severity;
3. Whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and
4. Whether it unreasonably interferes with an employee's work performance. For a single incident to establish a hostile work environment, it must be severe in the extreme and generally must include either physical violence or the threat of physical violence.

Thus, simple teasing, offhand comments, and isolated incidents, unless extremely serious, will not amount to discriminatory changes in the terms and conditions of employment.

An employee may claim environmental sexual harassment even if the employee was not the object of the harassment, if the harassing conduct permeated his or her work environment. The employee must establish that the employee personally witnessed harassing conduct, and that it was in his or her immediate work environment.

The fact that sex-related conduct is voluntary, in the sense that an employee is not forced to participate against their will, is not a defense. The correct inquiry is whether an employee, by his or her conduct, indicated that the alleged sexual advances were unwelcome. Thus, the employee's sexually provocative speech or dress is relevant in determining whether particular sexual advances were unwelcome.

An isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment of other employees. However, when such sexual favoritism in a workplace is sufficiently widespread, it may create a hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as "sexual playthings" or that the way for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or managers. An employer is potentially liable to any employee, male or female, who finds such conduct offensive and can establish that it is sufficiently severe or pervasive to alter his or her working conditions and create a hostile working environment.

An employer may also be liable for unlawful sex discrimination against other persons who were qualified for but denied an employment opportunity or benefit granted to someone because of his or her submission to sexual advances or requests for sexual favors. To prevail in such a case, the employee must establish that the employee was entitled to certain benefits or opportunities that the employee did not receive.

Employer's Obligation to Prevent and Respond to Harassment

FEHA requires employers to take all reasonable steps necessary to prevent unlawful harassment from occurring. In addition, FEHA requires employers to provide specified information to employees regarding the illegality of sexual harassment. Also, an employer having fifty or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees. The training must include the following:

• Information and practical guidance regarding the Federal and State statutory provisions concerning the prohibition against sexual harassment;
• The prevention and correction of sexual harassment; and
• The remedies available to victims of sexual harassment in employment.

Under Federal law employers should take measures to prevent sexual harassment. Under Title VII, employers who learn of sexual harassment by their employees must take remedial action that is reasonably calculated to end the harassment by imposing sufficient penalties to assure a workplace free from sexual harassment. The remedies must not only be reasonably calculated to end the harassment, but also disciplinary in nature. Counseling or admonishing the offender, or assigning the offender to a different shift to avoid contact with the victim, may be an adequate disciplinary response, depending on the circumstances of the case. More severe disciplinary measures must be taken if the preceding measures have not put a stop to the harassment. No specific remedial options are required, but the remedy must be appropriate to the circumstances of the case, and progressive discipline must be applied until the harassment is stopped. An employer must take remedial action even after the harasser has voluntarily stopped the harassment.

Retaliation

The FEHA, Title VII, the ADA, and the ADEA prohibit retaliation against any person for opposing any practice forbidden or made unlawful by those statutes.

Protected opposition includes,

• Complaints or protests to an employer,
• Meetings to discuss unlawful employment policies, and
• Refusal to participate in unlawful employment practices.

FEHA makes it unlawful to retaliate against any person for opposition to conduct prohibited by FEHA.

FEHA, Title VII, the ADA, and the ADEA also prohibit retaliation against any person because the employee has filed a complaint; made a charge; or testified, assisted, or participated in any investigation, proceeding, hearing, or litigation under those statutes. An employee who files a formal discrimination charge is clearly protected.

A complaint or statement made by an employee in an official employment discrimination proceeding under FEHA, Title VII, the ADA, or the ADEA, is absolutely privileged, even if made maliciously, and cannot subject the employee to liability to the employer or to another employee. A complaint or statement made by an employee to his or her employer, accusing another employee of harassment, is protected by a qualified privilege, even if the accusation is false. That is, the employee making the accusation will incur no liability to the falsely accused employee unless the accusation is made with malice.

An employer may not discharge or in any manner discriminate against an employee for filing a bona fide complaint or claim or instituting any proceeding relating to their rights under the jurisdiction of the Labor Commissioner, or for testifying in such a proceeding. Employers are also prohibited from discriminating or retaliating against employees for exercising any right given to them on their own behalf or on the behalf of others. Acts of discrimination and retaliation include discharge, threats of discharge, demotion, suspension, and any other discrimination in the terms and conditions of employment.

An employee who suffers discrimination or retaliation for having made a bona fide complaint is entitled to reinstatement and/or reimbursement for wages and benefits lost as a result.

Personal Liability

An employee may be held personally liable for retaliation against a person because the person has opposed unlawful employment practices or because the person has filed a complaint, testified, or assisted in a proceeding under FEHA.

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