Hostile Work Environment Lawyer

Brad Nakase, Attorney

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Hostile Work Environment Law in CA

Workplace harassment occurs when an employee suffers from different types of wrongful behavior while trying to do his or her job. There are many types of harassment that can occur and are prohibited under California law. A few examples include physical or sexual harassment, inappropriate comments, unwanted conduct, bullying, threats, and showing favoritism. Although this type of conduct may happen once in a while, an employee must show that this conduct affected his or her ability to complete their job or that it has caused such emotional distress that they did not want to go to work or had to quit.

What laws protect employees from workplace harassment?

California has implemented and follows specific laws to ensure that workplace harassment is regulated and prohibited. Further, the federal government has taken steps to ensure this abuse is handled and deterred. Any of these laws can be used to bring a claim of harassment but the best option will depend on the facts of the case.

Title VII of the Civil Rights Act of 1964:
this Federal law prohibits discrimination (harassment) based on race, color, religion, sex, or national origin.[1]

The Americans with Disabilities Act:
this act prohibits the abuse or harassment of those who suffer from mental and physical disabilities.[2]

The Fair Employment and Housing Act (FEHA):
California created regulation that prohibits different types of harassment/discrimination in the workplace.[3]

FEHA is the most widely used in California as it affords the most protection to employees similar to that of Title VII. Further, FEHA applies to all employers regardless of number employees.[4] An employer is defined as any person or agent acting on behalf of that person under FEHA.[5]

Equal Employment Opportunity Commision EEOC: Under federal law, hostile work environment and harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA).

What type of behavior is considered harassment?

Although employees may deal with unruly comments or actions daily, there are only certain instances when these actions reach the level of harassment. To be labeled harassment, the employee must be singled out or be having to continuously endure certain actions.[6] Forms of harassment include (but are not limited to): unwanted conduct, inappropriate words or comments, inappropriate jokes, unwanted advances, inappropriate propositions, bullying, derogatory comments, and favoritism.

Examples of harassment and what must be proven

Age: Any employee or job applicant over 40 cannot receive less favorable treatment just because of his or her age.[7] Examples of prohibited activities include:

  • Firing someone when he or she reaches a certain age.
  • Hiring someone just because they are younger even if the older person is more qualified.
  • Promoting others who are younger while deliberately avoiding older workers[8]

Medical conditions:
a medical condition can cause an employee to miss work or suffer pain while working. If an employee is currently or in the future will suffer from a medical condition, an employer cannot harass that employee because of the condition.[9]

Mental disability:
mental health has become a more prominent issue in today’s society. As times have changed, so has the law, fortunately. If an employee suffers from a mental disability, an employer cannot harass nor discriminate against the employee because of his or her mental health.[10] Examples of mental health disorders include, but are not limited to: anxiety, learning disabilities, autism, schizophrenia, and depression.

Physical disabilities:
physical disabilities are those bodily injuries that impair the worker’s everyday life.[11] With time, the disability will not get better. To prove a physical disability, an employee can show:

  • Physical impairment
  • Effected bodily system like neurological or
  • Limited mobility.[12]

If any of these are present, the employer cannot harass the employee due to these conditions.

one cannot be harassed because of his or her religious beliefs or practices.[13] An employee is allowed to dress as he or she would in a religious setting as long as that religious belief is genuine and set out by the U.S. Constitution.

an employer may not discriminate or harass an employee based off his or her sex. Sex refers to the biological status of the person but can also include other areas like pregnancy, maternity leave, paternity leave, gender identity, and breast feeding at work.[14]

Sexual harassment:
Sexual harassment is defined as, “unwanted sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.”[15]

Quid pro quo sexual harassment: Quid pro quo is a Latin phrase meaning, “this for that.” In a sexual harassment claim, this type of interaction is just as it says, giving something in return for a sexual act.

Unlike hostile work environment, sexual harassment quid pro quo occurs when the aggressor does something for the aggressor and in return the aggressor gets sexual favors. An example would be an employee having sex with her boss in order to get a raise or a day off.

In order to prove a quid pro quo claim, the plaintiff must show tangible employment results occurred because of a refusing his or her aggressor’s demands.[16]

Marital status: an employer cannot harass an employee based off his or her marital status meaning an employer cannot make comments on whether the employee is married, single, divorced, etc.[17]

bullying is synonymous with the word harassment. Any of the above can be deemed bullying as well.

The above is not an exhaustive list but are included in protections against harassment.

What must be proved in order to have a valid claim of harassment?

Harassment must be objectively seen as hostile, meaning a reasonable person in the victim’s shoes would also believe harassment has occurred. However, the victim must also have suffered his or her own personal injury.[18] The effect of the harassment must be so severe that the victim/employee’s work conditions have changed and he or she does not feel comfortable in the work environment. This can arise through distress, anxiety, leaving his or her job, etc. Further, there must be more than just one isolated incident; the conduct must be more often than that.[19] Moreover, the victim cannot claim sexual harassment if he or she welcomed it.[20]

Who is liable if a harassment claim arises?

If an employee files a harassment claim, he or she can do so personally against the aggressor or against her employer, or both. For instance, if the aggressor was another employee at a bank, the victim may sue the bank itself regardless of whether the employer knew or should have known about the harassment.[21]

Further, if the aggressor is a boss or supervisor, the employer will be strictly liable, meaning damages must be paid regardless of whether the employer knew or was at any fault. However, if the aggressor is another employee and not a person with authority, like a supervisor, the employer is not strictly liable. In fact, he or she will only be liable if:

  • Employer knew or should have known of the conduct and
  • Employer failed to take appropriate steps to alter the conduct.[22]

Ways an employer can avoid harassment charges

An employer can avoid harassment cases by training employees and informing them of what conduct is and is not tolerated in the workplace. Moreover, creating a policy that is written, explained, and signed by the employees before entering the workforce can also hold workers more accountable for his or her actions. Although these implementations will not always limit harassment, they hopefully will inform and deter the behavior because employees are put on notice of what is acceptable and what is not.

I think I have a case… What do I do?

If you feel you have been violated, you may have three options: speak with your employer or the human resources department, bring an administrative claim, or file a lawsuit. It is important to remember there is a one-year statute of limitations from the time of harassment to bring a claim.[23] In order to speed the process up and ensure you file within the allotted timeline, it is encouraged to seek help from a lawyer. Moreover, there may be a fear that if you complain, the employer will fire you. However, this is illegal under California law and is known as retaliation.[24] An employer cannot terminate you for having filed a claim against them.

Although having a lawyer may seem expensive, in many of these cases, you will not pay for anything except costs associated with creating documents like printing fees, court fees, etc. The lawyer will be paid for his or her services either by the defendant or from a percentage of your winnings.

Brad Nakase is an employment attorney who focuses on representing executives and employees in employment disputes. Please contact us for a free consultation: 888-600-8654

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Legal Reference

[1] 42 USCS § 2000e-2(a)(1)

[2] 42 U.S.C. § 12101(b)(2)

[3] Gov. Code, § 12940, subd. (j)(1)

[4] Gov. Code, § 12940, subd. (j)(4)(A)

[5] Cal. Gov’t Code § 12940(j)(4)(A)

[6] Gov. Code, § 12940, subd. (j)(4)(A)

[7] 29 U.S.C. Section 623

[8] 29 U.S.C. Section 623

[9] Gov. Code, § 12926, subd. (i)

[10] Gov. Code, § 12926, subd. (i)

[11] Gov. Code, § 12926, subd. (m)(1)

[12] Gov. Code, § 12926, subd. (m)(1)

[13] Gov. Code, § 12940, subd. (j)

[14] Gov. Code, § 12926 subd. (r).

[15] 29. C.F.R § 1604.11(a)(1985)

[16] Hughes v. Pair (2009) 46 Cal.4th 1035, hn 14

[17] Gov. Code, § 12940, subd. (j)

[18] Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 68, hn 4

[19] Civ. Code 51.9

[20] Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, hn 8

[21] Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 68

[22] Gov. Code, § 12940, subd. (j)(1)

[23] Gov. Code, § 12960

[24] Gov. Code, § 12940, subd. (h)