What Constitutes Workplace Harassment in California?

What Is Harassment In The Workplace?

Workplace harassment is illegal under both federal and California law and is a form of employment discrimination. Harassment is defined unwelcomed behavior and policies that are based upon an employee’s race, color, creed religion, sexual orientation or gender identity, sex (including pregnancy and maternity), national origin, age (40 or older), physical or mental disability or genetic information.

Harassing behavior occurs whenever an employee

  • Must work in an offensive environment as condition of their employment; OR
  • The offensive conduct or behavior is strong enough to create a hostile or intimidating work environment.

It is important to distinguish when such behavior becomes illegal. For example, simple slights or jokes or minor annoyances that are not extremely offense may not rise to the level of illegality. In order to rise to the level of illegality, the behavior, conduct and/or policies must create a hostile work environment that any other reasonable person could not tolerate.

Common examples of a harassing, hostile work environment may include, but are not limited to:

  • Offensive jokes, racial or sexual slurs, epithets or name calling;
  • Physical or verbal assaults, including threats, intimidation, or ridicule; OR
  • Personal insults, objects or pictures that are offensive in nature, and any other conduct that directly interferes with an employee’s work performance.

To prove harassment or a hostile work environment, it is not required that the victim actually suffers an economic injury or discharge from employment. Additionally, the victim does not have to be the direct recipient of the unlawful behavior.

Employers are encouraged, and in some cases required, to take responsible measures to prevent and ensure that their workplace is free of harassment. This includes adequate training of all supervisors and managers of the law’s prohibitions on harassment in the workplace and to implement policies for swiftly resolving these issues should they occur. The best method of self-regulating and protecting a business from liability is to implement a complaint or grievance process through management or a human resources department. Unfortunately, many employers lack the proper tools, education, and training to prevent hostile work environments.

The most important thing for employees to remember is that the law protects them from voicing their feelings and opinions on workplace conduct. The law encourages employees to report instances of harassment to the harasser directly that the conduct is unwelcome and must stop. Additionally, employees are encouraged to report harassment to management and/or human resources at an early stage to prevent ongoing unlawful behavior.

Is An Employer Always Responsible For Harassment In The Workplace?

Under both federal and California law, an employer is automatically legally responsible for any harassment by a supervisor that causes an employee to suffer any economic damages. These damages may include wrongful termination, denial of promotion opportunities, denial of employment, and lost wages. If a supervisor’s behavior creates a hostile environment, the employer can only avoid responsibility by proving:

  • The was a reasonable attempt to prevent and immediately correct the unlawful behavior; AND
  • The harassed employee made no reasonable attempts to report the behavior, take preventive or corrective action through the employer’s policies.

Employers are also liable and responsible for the conduct of non-supervisor’s conduct in the workplace. Harassment is not limited to “top-down” harassment of supervisors to employees. Oftentimes, employees with the same or similar job duties may experience on-the-job harassment that creates a hostile work environment, which requires employers to rectify promptly.

What Is Sexual Harassment?

At a basic level, sexual harassment is defined as unwelcomed sexual advances, requests or demands for sexual favors, and other physical or verbal harassment this is sexual in nature. Harassment, however, in not always sexual in nature, however, and can include offensive remarks about a person’s sex. Sex discrimination also include any comments or behavior negatively directed at a woman who is pregnant. It is also illegal to make derogatory comments that target an entire sex, rather than directly to an individual.

While we commonly think of sexual harassment as being conduct by a male against a female, it is important to remember that any sex could be the harasser or victim. The harasser could be a direct supervisor or a supervisor in a different department, a fellow co-worker, or someone who is not an employee of the employer, such as a client or customer.

Being able to identify sexual harassment is the first step of prevention. Generally, sexual harassment falls into two categories:

1) Quid Pro Quo harassment and

2) Hostile work environment harassment.

What Are Common Examples of Sexual Harassment and Hostile Work Environments?

Quid Pro Quo Harassment

Quid Pro Quo harassment is a type of workplace sexual harassment and occurs whenever a manager, director, or supervisor requires or requests that an employee exchange sexual favors return for promotions, career advancement, or other types of benefits. This is not limited to oral requests, but also includes non-verbal communication, gestures and/or physical conduct.

What Are Common Examples of Quid Pro Quo Harassment?

Oftentimes, Quid Pro Quo harassment is not as blatantly obvious as a supervisor requesting or demanding sexual favors in exchange for special treatment. Rather, employers or supervisors will misuse company policies, make threats, or violate wage laws to coerce employees into Quid Pro Quo situations. In these instances, supervisors or employers are misusing their position of power to manipulate an employee into performing sexual favors. Common examples may include:

  • Withholding pay or benefits, such as vacation or sick time, unless the employee agrees to accept the request for sexual favors;
  • Penalizing the employee by reducing work hours or responsibilities for refusing sexual advances;
  • Refusing to promote an employee unless they accept the request;
  • Threatening the employee with termination or probation unless they accept the request;
  • Creating false, negative performance review reports unless the employee accepts the request;
  • A supervisor meeting an employee outside of the workplace, making sexual innuendos during the meeting, and then discussing or making suggestions about the job security the employee would enjoy by being in a sexual relationship with the supervisor; OR
  • A supervisor touching his or her hand on an employee’s knee or thigh during a private meeting and making suggestions or innuendos that the employee’s performance reviews would be better if the employee was “more cooperative.”

Who Has To Prove That Quid Pro Quo Harassment Has Occurred?

In most jurisdictions, the burden of proof lies with the employer, not the employee. Simply put, this means that it is the responsibility of the employer to prove that any alleged Quid Pro Quo harassment did not occur in the workplace. Additionally, it is important to note that an employer cannot escape liability even if the employee accepted the request for sexual favors.

Additionally, it is illegal for an employer to terminate an employee in retaliation for filing a complaint or lawsuit for sexual harassment.

What Damages Can A Victim of Quid Pro Quo Harassment Recover?

There are multiple remedies available to a person who succeeds in bringing a Quid Pro Quo sexual harassment case against their employer. These remedies include monetary awards to compensate the employee. These include:

  • Recovery of lost wages, benefits, or lost opportunities, such as promotion opportunities;
  • Obtain restitution if the employee was terminated in retaliation for bringing the complaint or lawsuit;
  • Compensation for any emotional distress suffered by the employee;
  • In cases where the employee is successful in demonstrating that the employer acted maliciously or attempted to conceal ongoing sexual harassment, the employee may be able to recover “punitive damages.” Punitive damages are designed to punish the employer for knowingly allowing or actively engaging in the illegal behavior.

What Is Hostile Work Environment Harassment?

Hostile work environment harassment is not always as easily recognized as Quid Pro Quo harassment, because it can come in a much wider variety of misconduct. Hostile work environment harassment is described best as any conduct that makes the workplace abusive, uncomfortable or intimidating. In order to rise to the level of illegality, hostile work environment harassment must be severe, pervasive, and reasonably offensive.

Common examples of hostile work environment sexual harassment may include, but is not limited to:

  • A coworker or supervisor who makes frequent and repeated sexual remarks towards an employee;
  • A coworker or supervisor who repeatedly touches an employee in an unwelcomed or inappropriate manner;
  • An coworker or supervisor who frequently and continually emails inappropriate emails of an offensive and/or sexual nature;
  • A coworker or supervisor who frequently makes catcalls or other inappropriate phrases to an employee every time he or she walks by;
  • A coworker or supervisor who makes continual inquiries into an employee’s private sex life or sexual history; OR
  • A coworker or supervisor who continually bothers and persists for a romantic date or sexual encounter with an employee.

What Are Other Examples Of Sexual Harassment?

The key to determining whether behavior or conduct in the workplace has risen to the level of unlawful harassment is to examine how unwelcome, severe, and longevity of the behavior. Obviously, there are certain forms of conduct that even on their first instance who rise to the level of sexual harassment, and quite possibly beyond. For example, the most extreme examples of sexual harassment are those of a physical nature, such as, sexual assault or battery, and of course, rape. However, it is important to remember that sexual harassment exists on a spectrum, with the most extreme (rape) being on one end, and on the other end, conduct involving minor off-color sexual comments, jokes, and jests may or may not rise to the level of harassment. It is important to remember that regardless of how minor behavior may seem, employees (and their employers) should err on the side of caution by immediately reporting and responding to unwelcome behavior or conduct in order to fully assess whether any unlawful conduct has occurred.

The following is a list that may further assist with understanding the wide range and spectrum of the common forms of harassment:

  • Sexist, gender-based, homophobic or transphobic comments;
  • Sexual innuendoes, comments, and remarks;
  • Suggestive, obscene, or insulting sounds (such as catcalling);
  • Humor or jokes about sex, gender, or LGBTQ issues in general;
  • Propositions, invitations, or other forms of pressure for sex or sexual favors;
  • Implied or overt (blatant) threats of physical or verbal sexual assault or employment retaliation;
  • Groping, pinching, stroking, brushing up against the body, and any other inappropriate touching or feeling;
  • Unwelcomed attempts to kiss, actual kissing or fondling;
  • Persistent invitations or requests for out of work dates for drinks, dinner, or vacations;
  • Emailing material that is lewd or sexually suggestive or outright sexual in nature;
  • Leering or making obscene or inappropriate gestures with hands or body;
  • Personal questions of a sexual nature
  • Vulgarities and other offensive language
  • Physical conduct that is sexual or degrading to any reasonable person
  • Physical sexual assault and rape

What Is Non-Direct Sexual Harassment?

Remember that a person does not need to be a direct recipient of targeted harassing behavior or conduct. Oftentimes, a third party employee who was not directly targeted with sexual harassment or other discriminatory behavior or conduct may be able to bring a claim against the offender for the workplace harassment due to the offender’s inappropriate behavior or actions. For example, if a third party witnesses harassing or discriminatory behavior, reports the conduct, and as a result, does not receive a promotion or scheduled pay raise that he or she would have otherwise received, they may be able to bring an action. Additionally, if the third party is denied a promotion he or she would have been next in line for but it was given to another employee who submitted to a Quid Pro Quo proposition from a manager, that third party has the right to bring a complaint against the offender.

What Are Some Actual Cases Of Sexual Harassment?

Jenson v. Eveleth Taconite Co.

Arising from employment back in the 1970’s, this case is one of the first major victories for those seeking protection from sexual harassment in the workplace. Lois Jensen became one of the first female employees of the Eveleth iron mine in Minnesota. She and fellow female colleagues were subjected to harassment by male workers who refused to accept women in the workplace; believing that women should remain in the home. Additionally, Jensen was the victim of stalking by her male supervisor. After years of suffering the ongoing harassment, Jensen filed a lawsuit in 1984 against her employers. Even after filing the lawsuit, it took her several years to find an attorney willing to represent her case. The case dragged on for over a decade, with more women coming forward and joining in the lawsuit. Eventually, the case settled for $3.5 million and was the first class action lawsuit for sexual harassment in the country.

Shank v. CRST

In 2015, the California Court of Appeal upheld a multi-million dollar verdict against nationwide shipping company CRST for sexual harassment of a trainee truck driver. In that case, the plaintiff Karen Shank successfully demonstrated that her employer refused to pay for separate motel rooms for co-drivers, regardless of whether the drivers were opposite sex. She argued that she was financially pressured to stay in the same room as her male co-driver and trainer, who would undress in front of her, crawl into bed with her, and even allegedly raped her. The court found that CRST had not done everything in its power to protect their drivers and themselves from liability and injury.

Chopourian v. Catholic Healthcare West

In 2012, a woman was awarded the largest employment verdict in a harassment suit to the tune of nearly $168 million. The case stemmed from allegations of emotional distress and sexual harassment by surgeons and medical staff in the cardiac surgery center at Mercy General Hospital in Sacramento from 2006 to 2008. Chopourian was subjected to repeated tormenting acts, such as, aggressive verbal abuse, being stuck with a needle by a surgeon, and sexually charged language. Making matters worse, these acts were even committed in front of supervisors who refused to take any corrective action on her behalf. The hospital was found to have repeatedly ignored her numerous complaints of harassment and violations of state labor laws. While the large dollar verdict is rare in most employment law cases, it serves as a strong example of how employers can be found to be severely liable for the conduct of supervisors and their treatment of employees.

The Clarence Thomas Hearings

Back in 1991, now Supreme Court Justice Clarence Thomas’s Senate confirmation hearings were stalled by accusations of sexual harassment by law professor Anita Hill. Hill testified to the Senate Judiciary Committee that she had been the victim of unwelcomed sexually provocative comments by Thomas during their time at the University of Oklahoma law school. Thomas was eventually confirmed by the Senate despite the accusations of sexual harassment, but the case helped propel national awareness of the issue.

What Are The Best Methods For Preventing Harassment?

The first and most crucial steps to preventing harassment in the workplace requires a proactive approach with a strict focus on training, awareness, and effective methods of responding to complaints.

Training: Every organization or company should, from the outset, focus on providing regular training for all employees on identifying and preventing workplace harassment and discrimination. As a rule of thumb, companies should review and repeat harassment and discrimination training every two years. California law does require this for supervisors for organizations with 50 or more employees, including management. In the time between full training sessions, it is important for employers to provide intermittent refresher training in order to keep information and the laws regarding harassment fresh in their employees’ minds.

Awareness: In addition to training, it is important for companies to continually promote awareness of harassment and discrimination through other means, such as literature, posters, and brochures. These items are frequently encourage, and in some cases required by law, in order help other employees understand and identify workplace harassment. Additionally, these materials serve as a guide for inform employees about who their point of contact is to report or discuss harassment allegations, such as, a supervisor, the human resources department, the company’s ethics hotline, or an outside governmental agency responsible for handling complaints.

Methods for Responding to Complaints: Companies should always stride to ensure that they have implemented an efficient and easy process for responding to and correcting harassment or discrimination complaints. Larger organizations (typically with more than 25-50 employees on staff) should establish and designate appropriate individuals in charge of taking reports and complaints of harassment allegations. These are typically supervisors, human resource officers, or even an ethics and compliance hotline. Finally, the company should make sure that it has integrated standardized procedures for investigating, responding to and resolving harassment complaints on a case by case basis.

These policies will help ensure a uniform and compliant approach to how investigations are conducted, what corrective actions should be made, what kind of remedies the victims may be entitled to, how to ensure proper levels of confidentiality for all parties involved, and how to prevent retaliatory behavior. Remember that an employer is automatically liable for uncorrected and unaddressed instances of harassment and/or discrimination in the workplace.

What Are The Next Steps If The Company Does Not Appropriately Respond?

There may be an instance where an employee’s complaints have gone unheard, have not been properly dealt with, or retaliation has occurred against a harassing individual. Alternatively, the harassing behavior may be stemming from the point of contact that is in charge of regulating such behavior and the employee feels uncomfortable reporting such violations. In those cases, which are not uncommon, the employee should strongly consider meeting with an employment discrimination attorney and/or initiate the administrative complaint process with the appropriate government agencies. Remember, under both federal and California law, administrative remedies must first be exhausted before pursuing any litigation (lawsuits) and are subject to strict time constraints. For more information about these procedures, please take time to review our section on filing a complaint with the California labor board.

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