Unlawful workplace harassment occurs in California when an individual engages in negative, inappropriate, or unwelcome behavior toward a worker based on protected characteristics. This may include, among other things, the employee's race, disability, religion, sex, gender identity, marital status, sexual orientation, or pregnancy. You might need the help of a Labor Lawyer to get the payable damages you might be entitled to.

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In most situations, abuse must result in a hostile work atmosphere in order to be considered illegal. A hostile work atmosphere is one in which serious, repeated, or both forms of harassment occur. A few annoying or slightly offensive remarks are normally insufficient.

Harassment at work can take a variety of forms, including:

Inappropriate jokes, insulting remarks, or innuendo are prohibited.
Harassment in the form of inappropriate touching or hitting
Threats made verbally or implied threats
Harassment in the form of posters or signs is a form of visual harassment.
Requests for sexual favors that are aggressive or frequent
Preferential treatment based on a protected attribute

Many forms of meanness, discrimination or personal gratification may motivate unlawful workplace harassment. However, many workplace activities that seem to be wrong do not constitute unlawful harassment. As a result, it's important for both employers and workers to understand the nature of California's anti-harassment laws.

Which behaviors can lead to a hostile workplace?

Employers and workers in California are both prohibited from bullying any worker, employee, candidate, volunteer, independent contractor, or unpaid intern if the harassment is motivated by certain illegal motives.

The protected characteristics list specifies which intentions are illegal, but it does not specify which activities are illegal. Unfortunately, there is no clear-cut definition of what constitutes "harassment." Instead, courts have interpreted the word in broad terms.

In most harassment cases, the key question is whether the harassment has resulted in a hostile work environment. Abuse in the workplace that is so widespread that it creates an abusive work atmosphere is known as hostile work environment harassment. Inappropriate behavior must be serious, repeated, or both.

Aggressive work environments, as the name suggests, are only illegal if the behavior is objectively hostile or violent. A few annoyances or mildly insulting remarks are normally insufficient.

The harassment must also subjectively annoy, humiliate, or upset the victim. An individual cannot argue that they were subjected to a hostile work atmosphere if they were emotionally or psychologically unaffected by the harassment or if they deliberately welcomed it.

The harassment itself had a negative impact on their mental well-being at work.
Her willingness to do her job as normal was harmed as a result of the harassment.
Their personal sense of well-being was harmed and weakened by the abuse.

Although some courts have indicated that one serious offense (such as rape or physical assault) is enough to sustain a charge of hostile work environment abuse, most cases have required the victim to prove a pattern of harassment. Find an Employment Law Attorney to help you get through the difficult experience.

Several factors are considered by California courts when determining whether the work environment is too hostile or abusive:

The severity of the misbehavior.

Especially bad behavior (such as non-consensual physical touching) is more likely to be illegal than mild behavior. The more serious the behavior, the fewer times it would occur to reach the "pervasive" conduct threshold.

The frequency at which the conduct occurs.

Even minor acts may become illegal if they occur often enough. Improper behavior that occurs often is more likely to be labeled "pervasive" than behavior that occurs once every other month. Some California courts will also try to count or estimate the total number of days the conduct took place.

Background

All of the circumstances surrounding the abuse can be investigated using this element. In some situations, circumstances outside of the inappropriate behavior can make it more or less egregious. For example, if the behavior occurred just outside of the office, it may be less egregious.
The importance of each aspect will be strongly influenced by the facts of the case. And, while these considerations may aid in determining whether or not a hostile work environment exists, the final decision is made by the court.

Sexual Harassment vs. Quid Pro Quo Sexual Harassment

A hostile work environment is not needed in sex-related cases until behavior rises to the level of unlawful harassment. If a boss or coworker engages in quid pro quo sexual harassment, they are breaking the law.

The term "quid pro quo" comes from the Latin phrase "this for that." Quid pro quo sexual harassment happens when sexual favors are offered or demanded in return for a particular job again.

Quid pro quo sexual harassment typically takes one of two forms:

An employer or boss provides an employee with a reward in exchange for the employee agreeing to perform a sexual favor.
An employer or supervisor threatens an employee with disciplinary action at work, such as firing, unless the employee agrees to certain sexual demands.

Unwanted sexual advances, offensive discussions of explicit sexual acts, or comments on the employee's body and the sexual uses to which it may be placed are common in quid pro quo situations.

These types of offenses may be committed explicitly or implicitly. Quid pro quo sexual assault can be as simple as implying a work advantage in return for sexual favors.

Sexual assault that is offered in exchange for something is generally considered a significant legal breach. As long as a tangible job action arose from a failure to respond to a supervisor's sexual demands, even one instance of quid pro quo abuse may be enough to bring a complaint.

Gender isn't a factor.

Laws against workplace discrimination protect both men and women equally (as well as any other gender identifications). As a result, harassment committed by women is illegal to the same degree that harassment committed by men is illegal. Moreover, harassment is illegal even though the victim is of the same gender as the aggressor.

In other words, both the harasser and the victim's genders are meaningless. The only concern is whether the underlying behavior was illegal. Regardless, an Employment Law Attorney can help you with your concerns, including filing a claim to related organizations.

Which Characteristics are Protected?

In California, all direct physical attacks and assaults in the workplace are illegal. However, most cases do not include such overtly illegal or criminal behavior. Rather, the majority of workplace abuse is either verbal, written, or inferred.

Surprisingly, many forms of behavior that most people consider "harassment" are perfectly legal in California. To be considered illegal, the abuse must be motivated by an illegal motive, and the employee must be singled out or threatened because of their protected characteristic.

Age

Age-based discrimination happens when a worker over the age of 40 is treated unfairly because of his or her age. Both state and federal legislation forbids covered employers from bullying employees over the age of 40.

Race, Color, National Origin, or Ancestry

Employers in California are prohibited from harassing employees based on their ethnicity, skin color, national origin, or heritage. It is also illegal for employers to harass employees based on their affiliation with people of other races, skin colors, national origins, or ancestries.

Jobs are covered even though they belong to ethnic groups that have not historically been discriminated against (such as Caucasians). These forms of charges are often referred to as "reverse discrimination" claims.

Of course, an employer can not always be aware of a worker's race. As a result, California has expanded its anti-harassment provisions to employees that are considered to be of a certain ethnicity, color, national origin, or descent (or to identify with these groups). This means that even if a worker isn't a member of a protected class, it is still illegal for an employer who thinks they are to threaten them on that basis.

Religion

It is against the law to intimidate others because of their religious beliefs. The word "religious belief" is a vague term that encompasses all facets of religious practices.

Religious belief: An real or assumed religious belief. To be considered religious, one does not need to believe in a god, supreme being, or deity, but something more than a philosophy or way of life is needed.

Identifying as a follower or practitioner of a specific religion is known as a religious profession. Rituals, traditions, and dress are examples of outward manifestations of a specific religious belief or practice.

It is normally up to the employee, not their boss or a judge, to decide what is a tenet of their religious belief, what rituals are required, or what constitutes religious observation in order to determine if a religious belief is "genuine."

Physical Disabilities

Physical disabilities are the most common form of occupational disability. A physical disability is defined as any bodily disorder, cosmetic disfigurements, or anatomical loss or injury that tends to affect one or more of the body's major systems and restricts a major life operation in the majority of cases.

Employees have a right to be free from discrimination because of their physical disability in general. There are many ways for an employee to demonstrate that they have a physical disability. The most popular method is to display three items:

Anatomical failure, cosmetic disfigurement, physiological illness, disorder, or condition affects the employee. The neurological, immunological, musculoskeletal, special sense organs, gastrointestinal, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine systems are all affected by the physical disability. Consider one of our prescreened California Lawyers in your Cal Bar Attorney Search.

Limited Life Activity

The condition restricts a major life activity. A condition restricts a major life activity if it makes it impossible to accomplish that activity. The term "major life activity" is used loosely. Standard social events, basic life functions (walking, dining, sleeping, and so on), and jobs are all included.

A worker can also prove they have a physical disability by demonstrating:
They have a health condition that necessitates special education or other services.
They have a history or record of an illness, disability, condition, cosmetic disfigurement, anatomical loss, or health deficiency.
That their employer believes the employee has or has had a physical disability.

In addition to the general things described in the list above, California law has specifically included the following conditions as physical disabilities: deafness, blindness, amputation (whether partial or complete), impairments in mobility that require a wheelchair (or other tools for physical assistance), Cerebral palsy, and other chronic conditions such as HIV/AIDS, epilepsy, hepatitis, seizure disorder, diabetic neuropathy.

If an employee's condition is mild and temporary, it is not considered a qualified disability. Mild disabilities are assessed on a case-by-case basis. They contain factors with little to no long-term consequences, such as:

Colds, seasonal or common influenza, minor cuts or abrasions, sprains, muscle aches, soreness, bruises, non-migraine headaches, and minor and non-chronic gastrointestinal disorders are all examples of minor and non-chronic gastrointestinal disorders.

Mental Health Issues

For these purposes, mental impairment is described as any mental or psychological disorder that restricts a major life activity.

Workers have the right to be free of harassment because of their mental disability in general, and an employer should not harass a worker based on a belief that the worker has a mental disability, whether or not that belief is correct.

Importantly, even though all of these behaviors are arguably psychiatric illnesses, California law expressly forbids them: compulsive gambling, Kleptomania, Pyromania, Substance abuse disorders arising from current illegal drug use, and Certain sexual conduct disorders, such as pedophilia, exhibitionism, and voyeurism.

Transgender people, for example, do not have an exempt sexual orientation disorder. The freedom to pose or dress in a manner that is compatible with the employee's gender identity or gender expression is protected by California law.

Medical Condition

Any genetic trait associated with a disease or a health disorder linked to a cancer diagnosis is known as a medical condition. Medical disorders are frequently a concern with workers who have an elevated risk of potential health issues.

Employees with medical conditions are covered by California law, which ensures that their employer cannot threaten them even if they are not currently experiencing symptoms.

The presence of a medical condition that puts the employee at a higher risk of potential medical issues qualifies them as legally "disabled" for these purposes, and they are entitled to insurance.

Information on Genetics

Employers in California are prohibited from collecting genetic information from employees or prospective employees in order to make job decisions.

It is not possible to obtain genetic knowledge from:

The results of a genetic test for a person
The outcome of the individual's family members' genetic tests
The awareness that a person or a family member has been diagnosed with a genetic disorder
Requests to be tested genetically or to have a family member tested genetically

A gene or combination of genes known to cause a disease or significantly increase the chances of the disease but hasn't manifested into actual disease.

Some inherited characteristics of a disease or disorder or a trait that makes a person more likely to develop a disease but hasn't manifested into disease yet are all examples of genetic characteristics.

An employer does not fire an employee whose mother has Huntington's Disease because the employee has inherited the disease from her mother.

Marital Status

Employers should not discriminate against employees because they are single, married, separated, divorced, or widowed. Employers may also not enforce explicit prohibitions on recruiting married staff at the same place.

It is not considered harassment or discrimination, however, if an employer wishes to monitor married coworkers in the same department to mitigate any potential issues. It is also not unfair or harassing to provide larger compensation packages to employees with more dependents, such as spouses.

Sex

Employers in California are prohibited from favoring, discriminating against, or harassing employees based on their sex. Sex refers to whether an individual is biologically male or female. However, the term "sex" in this sense has a wider meaning than it usually does. Discrimination can be based on a variety of factors, including:

Pregnancy or pregnancy-related medical problems
Childbirth or childbirth-related medical problems
Breastfeeding or breastfeeding-related medical problems
Gender identity (male, female, intersexed)
Gender identification
Gender identity.
Pregnancy

In California, it is illegal for an employer to threaten a pregnant employee because of their pregnancy. This is true whether or not the employee is disabled as a result of the pregnancy.

Gender, Gender Identity, or Gender Expression

Employers are prohibited from harassing employees based on their gender, gender identity, or gender expression. These terms are general or broad and include a person's gender-related appearance and behavior, even though it isn't stereotypically associated with the person's assigned sex at birth.

Sexual Orientation

Employers in California are forbidden from harassing workers based on their sexual orientation. Sexual orientation refers to whether a worker is heterosexual, homosexual, or bisexual. Employers are often prohibited from harassing employees based on their perceived sexual orientation.

Whether or not a male employee is secretly homosexual, an employer who violates the Fair Employment and Housing Act regularly belittles him because he "acts gay" has engaged in unconstitutional sexual orientation discrimination.

Status as a service member or veteran

Active military service personnel and veterans of the United States Armed Forces, United States Armed Forces Reserve, United States National Guard, and California National Guard are covered under California's anti-harassment laws.

Typical Cases of Unlawful Harassment

The tests used to define "harassment" can be a little confusing. Since there is no clear rule defining which behavior is serious or systemic, this is especially true for hostile work environment allegations. As a result, many courts depend on the evidence trends of previous cases when analyzing a claim. These examples will help courts determine where the line is drawn when deciding if the conduct is illegal.

Unwelcome Physical Contact

Unwanted physical contact is the most obvious form of abuse. Physical contact has been characterized by courts as being more offensive than mere words or verbal assault in most instances. As a result, a court is more likely to find illegal harassment where there is physical touching.

However, many cases contain evidence that is much less egregious. An occasional contact on the arm or back, for example, may not be considered abuse, even though the employee interprets it as sexual. Unfortunately, there is no bright line in the sand with these types of close calls in the courts. Instead, the magnitude and frequency of the touchings are taken into account.

Derogatory Remarks

Harassment in the form of negative remarks is perhaps the most prevalent form of harassment. These remarks are often aimed at women or minorities in the workplace in the real world. It may be in the form of jokes, threats, slurs, or other forms of verbal abuse.

In California, even if there is no physical contact, remarks alone may be considered abuse. To be actionable, however, the comments must be more than just crude, vulgar, or disparaging. Derogatory remarks, like other hostile work environment arguments, must be serious or systemic.

An effeminate male restaurant employee, for example, was subjected to an unrelenting torrent of derogatory names in one situation. He was often referred to as a woman on many occasions, and he was teased for acting like one. The court decided that this level of verbal bullying was adequate to support an unlawful harassment charge.
A male boss referred to female workers as "dumb fucking broads" and "fucking cunts" in another instance.

⁠The supervisor's workplace harassment of women, according to the court, was motivated by their gender. As a result, the court determined that the employee had been assaulted because of her gender.

Propositions That Aren't Appropriate

In the workplace, propositions are often fairly popular. In most cases, a single request for a date does not constitute abuse. If an employee is exposed to persistent advances from the same individual or is disciplined for refusing an advance, there may be a legitimate accusation of harassment.

A coworker asked an employee out on a date three or four times in one situation. Each time, the request was turned down by the employee. The coworker later told her about his sexual fantasies about the employee. ⁠ The employee was upset and complained to her boss about her coworker's actions. The coworker started staring at her angrily several times a day after that.

In that case, the court determined that the coworker's original propositions could be considered blatant acts of sexual assault. Similarly, the coworker's long period of looking at the employee may be considered illegal retribution. In this case, an employer may be held responsible for improper sexual assault.

Offering jobs or employment opportunities in return for sexual acts is another clearly forbidden activity in California. As previously stated, such deals or threats are illegal quid pro quos.

Importantly, inappropriate propositions do not have to be stated outright to be illegal; they may be inferred by words or actions. When a boss or other superior implies that a subordinate can advance in the workplace by sexual activities, this may happen.

Favoritism and Discrimination

Favoritism founded on illegal motives is illegal in California. This type of discrimination may occur in the context of harassment when managers reward workers based on their ethnicity, gender, religion, or other protected characteristic.

In general, isolated acts of favoritism against an employee with whom a boss has a romantic relationship will not be considered sexual harassment. However, in these cases, the distinction between consensual sexual behavior and job-motivated sexual favors is often blurred.

When sexual favoritism is common in the workplace, it may lead to an illegally hostile work atmosphere. Employees are sent the demeaning message that they are sexual playthings by management in these situations. Worse, workers may believe that in order to advance in their careers, they must engage in sexual activity with their employers or management.

In one case, two female workers filed a sexual harassment lawsuit against their boss after he had affairs with three subordinate employees at the same time. The boss promised and gave the woman with whom he was having sex unequal work benefits. The court determined that this behavior could amount to widespread sexual favoritism, which could warrant a charge of hostile work environment sexual harassment.

Isolated Occurrences

In any of these situations, it's important to note that individual instances of improper behavior are seldom enough to elevate a hostile work atmosphere allegation to the level of unlawful harassment. This is valid even though the employee has been involved in many similar events over the course of several years.

Employees must instead be able to demonstrate a concerted pattern of discrimination that is repetitive, regular, or generalized. Alternatively, if they want to rely on a single incident to back up their point, the incident must be extremely serious.

In one instance, an employee sued her boss after her boss fondled her bare breast while forcing his hand beneath her sweater and bra. The employee needed psychiatric assistance and was still unable to return to work.

The court found that the incident did not affect the employee's ability to do her job in the long run since it happened on a single occasion for a few minutes. As a result, it was not considered illegal hostile work environment abuse.

It's worth noting; however, that case concerned the application of federal law. It's likely that if California law had been used, the result would have been different. Find an Employment Law Attorney to help you.

Behaviors that are Mildly Offensive

There is a lot of behavior that most people may consider inappropriate, but that might not be considered abuse in the eyes of the law. Simple joking and casual remarks, for example, would not be considered unlawful unless they are extreme or repetitive.

Furthermore, when it comes to things like physical contact or office jokes, different people have different degrees of comfort. Employers who want to prevent discrimination lawsuits should avoid engaging in or allowing any actions that might put their reputation on the line or that they aren't sure an employee would be happy with.

The Responsibility to Create Harassment-Free Workplace

Employers in California have a legal obligation to establish a harassment-free workplace. For several employers, this task entails avoiding foreseeable harassment, promptly correcting known harassment, and providing constructive harassment training to employees.

When an employer causes harassment to arise that should have been avoided, they are breaking the law. Employees must demonstrate two things to prove this type of legal violation:

The employer was aware of the harassing behavior or should have been aware of it
Te employer failed to take prompt and effective disciplinary action.

Simply put, if an employee has a history of bullying or if a victim of harassment informs the employer of the harassment, the employer must take all appropriate measures to avoid further harassment.

Employment Policies in Writing

Employers in California are expected to establish and distribute a written abuse, discrimination, and retaliation prevention policy to their staff. Certain basic conditions apply to the policy, including the following:

All protected groups under the California Fair Employment and Housing Act must be included in the policy (FEHA)
It must state that the law forbids coworkers, third parties, bosses, and managers from participating in FEHA-prohibited behavior.
It must provide a complaint procedure; it must include a means for employees to file complaints that do not require them to go straight to their immediate supervisor.
It must direct subordinates to report any allegations of wrongdoing to a designated organization official, such as a human resources manager so that the claim can be resolved internally.
It must state that if an employer receives complaints of wrongdoing, it will conduct a fair, prompt, and comprehensive investigation that affords both parties due process and leads to objective conclusions based on the facts gathered.
It must state that the employer will keep the investigation as private as possible, but it cannot state that the investigation will be entirely private. It must state that if wrongdoing is discovered at the conclusion of the investigation, effective corrective action will be taken.
It must state unequivocally that workers will not face retaliation if they file a complaint or participate in a workplace investigation.

Hostile Work Environment Liability

As abuse happens at work, the victims are the ones who suffer. Many victims in California have the right to sue their harassers for compensation to compensate them for their suffering.

Many employers mistakenly assume that only the individual who harasses someone personally is liable for damages to the employee. Although individual harassers may be held individually responsible for their actions, employers are often held liable as well.

If the harasser is a boss or an employer, the employer would be held solely liable. This means that even though the employer was not at fault for the harassment and did nothing wrong, the employer would be held liable for the victim's damages.

If the harasser is merely a coworker or other non-supervisory employee, the employer is only responsible for the abuse if:

The harassing behavior was understood or should have been known by the employer.
The employer did not take prompt and effective disciplinary measures.
Employers are held liable under this test if they were negligent in treating one or more cases of sexual abuse.

Furthermore, even though the harasser is not an employee, employers will be held responsible for the abuse. However, the scope of the employer's responsibility can be determined by the level of influence they have over the non-illegal employee's conduct.

Find A Workplace Harassment Lawyer in California

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