Harassment - The Basics
What is Harassment?
Harassment is a form of employment discrimination that violates both Federal and State law.
Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets
Harassment is the unwelcome conduct based on race, color, religion, sex (including pregnancy), national origin, age, or disability. Harassment becomes unlawful when it 1) becomes a condition of continued employment, or 2) when the conduct is so severe or pervasive that it creates an intimidating, hostile, or abusive work environment or name-calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.
An employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor's harassment results in a hostile work environment, depending on the employer's reaction to the supervisor's conduct, the employer may also be liable.
Anti-discrimination laws also prohibit retaliation against an employee for filing a discrimination charge or opposing employment practices that they reasonably believe discriminate against individuals.
California has a fundamental public policy against sexual harassment in the workplace. Since 1985, the Fair Employment and Housing Act (“FEHA”) has prohibited sexual harassment of an employee. Government Code section 12940, subdivision (j)(4)(a) provides, “[f]or purposes of this subdivision only, ‘employer’ means any person regularly employing one or more persons." Thus, all employers accused of harassment (based on sex or another classification listed in Gov. Code, § 12940, subd. (j)(1)) are subject to a FEHA harassment claim.
The FEHA makes unlawful the sexual harassment of an employee by any person. In addition, it is unlawful “[f]or an employer ... to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” Sexual harassment is defined as including unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.
California's FEHA recognizes two theories of liability for sexual harassment claims – quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances – AND – hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment. The court employs a “totality of the circumstances” approach to determine the severity of the harassment.
Furthermore, FEHA prohibits acts of retaliation against an employee who has made a complaint of discrimination or harassment.