Harassment is conduct in the workplace that includes unwelcome advances or other abusive conduct that negatively impact an employee’s work environment. Harassment in the workplace can take many forms, and can dramatically harm an employee’s emotional and physical well-being, as well as job prospects.
In California, the Fair Employment and Housing Act (known as “FEHA”) prohibits harassment based on age, race, religion, skin color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, gender, gender identity, gender expression, pregnancy, childbirth, or sexual orientation, or the perception that a person has one of those characteristics, or association by the person with another who either has or is perceived to have one of those characteristics. (Government Code § 12940(j)(1), (3).) Unfortunately, unwanted sexual advances are still a very common form of workplace discrimination.
Harassment in the workplace can take the form of discriminatory intimidation, ridicule, and insult that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” (Meritor Sav. Bank v. Vinson (1986) 477 US 57, 64, 106 S Ct 2399.) FEHA’s harassment protections prohibit situations in which the social environment of the workplace becomes intolerable because the illicit conduct (whether verbal, physical, or visual) communicates an offensive message to the harassed employee. (Roby v McKesson Corp. (2009) 47 C4th 686, 706; Serri v Santa Clara Univ. (2014) 226 CA4th 830, 869; Rehmani v. Superior Court (2012) 204 CA4th 945, 951.)
Since January 1, 2000, FEHA’s prohibition against harassment has protected not only employees but certain independent contractors who provide services under a contract, i.e. persons who:
• Have the right to control the performance of the contract for services and discretion as to the manner of performance;
• Are customarily engaged in an independently established business; and
• Have control over the time and place the work is performed, supply the tools and instruments used in the work, and perform work that requires a particular skill not ordinarily used in the course of the employer’s work. (Government Code §12940(j).)
The scope of FEHA’s harassment provisions was further expanded in 2003, when an amendment made it clear that an employer can be liable for the harassment of employees by nonemployees if the employer knew or should have known about the conduct and failed to take immediate and appropriate action. In Carter v. California Dep’t of Veterans Affairs (2006) 38 C4th 914, this amendment was held by the California Supreme Court to be a clarification of existing law and therefore could be applied to conduct that occurred before its enactment.
Government Code §12940(j)(4)(C) was amended effective January 1, 2014, to specify that “sexually harassing conduct need not be motivated by sexual desire.” Effective January 1, 2015, FEHA’s harassment protection was again expanded to include unpaid interns and volunteers. (Government Code §12940(c).)
Because a harasser need not exercise delegated power on behalf of the employer to communicate an offensive message, it does not matter for purposes of proving harassment whether the harasser is a high-level manager or supervisor or an entry-level person. However, harassment by a high-level authority may be more damaging to an employee due to the authority that the high-level position has. Furthermore, when the harasser is a supervisor, the employer is strictly liable for the supervisor’s actions. When the harasser is a nonsupervisory employee, employers are liable when the employer knew or should have known of the harassment and failed to take appropriate corrective action. (Roby v McKesson Corp., 47 C4th at 706.)
Lebe Law helps employees determine if they have a viable harassment claim against their employer and, if so, aggressively seeks redress for the mistreatment.
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