"Harassment" or FEHA Harassment-When is harassment at work actionable?

You’ve probably heard people complain about their jobs. People are quick to say they work in a “hostile work environment.” Most people think their supervisors are harassing them. When does the law protect you?

Not every person that has a difficult job suffers from harassment prohibited under the law.  It’s not against the law for a supervisor to “be a jerk,” “have it out for you,” or even over scrutinize you.  But it is often against the law for a supervisor to do those things if it’s because you are a member of a protected group.

Protected groups

Determining the reason why your supervisor or co-worker is “being a jerk” is really the first step to see if a claim exists. A protected group for purposes of the Fair Employment and Housing Act (“FEHA”) is any characteristic or trait identified in the statute. Gov’t Code §12940(j)(1).

FEHA, Gov’t Code §12940(j)(1), makes harassment in employment illegal when it is based on:

• sex;
• age;
• gender;
• sexual orientation;
• physical or mental disability;
• race, color, national origin, or ancestry; 
• medical condition (cancer);
• genetic information; 
• marital status; or 
• gender identity or gender expression. 

If you believe that you are being mistreated because you are in one of the above groups, it’s a good time to talk to an attorney. An attorney can help you stop it and discuss your options.  We give free initial consultations and can help you determine whether it is discrimination or harassment. All FEHA harassment is discrimination but not all FEHA discrimination is harassment.

For FEHA discrimination to be actionable there must be at least five or more employees at your place of employment, but FEHA harassment doesn't require a minimum number of employees Gov’t Code §12940(j)(4)(A). You're protected against harassment even if it is just you and the owner working for the company. You don't even have to be an employee you can merely be "providing services pursuant to a contract." Gov’t Code §12940(j)(1).

 Harassment and the “hostile work environment.”

Harassment is prohibited in employment under FEHA as stated in Gov’t Code §§12940(a) and (j)(1). There are numerous cases that attempt to define what is considered harassment. Here, we are merely providing a general overview of what might be considered FEHA harassment.  What people call harassment in everyday conversation is very different from harassment under FEHA.  

A hostile work environment can result from many acts over a sustained period. It can also be from a “severe” single incident such as sexual assault or rape. It must be “severe or pervasive” Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 CA4th 153, 160-161.  The “totality of the circumstances” are considered in determining whether the hostile work environment exists.

Sexual Harassment has another form besides the hostile work environment claim, called “quid pro quo sexual harassment,” which means “this for that” or a “favor for a favor.” Usually it has an economic aspect, where a supervisor asks for sexual favors in exchange for some employment benefit. For example, like seeking sexual favors in exchange for job placement, promotion, a good performance review, or in order to keep a job.

Many acts over a sustained period of time

Many acts over a period of time which creates a hostile work environment is the most common form of harassment.  It applies to all protected groups in determining whether harassment exists. The severity of  the conduct coupled with how often the conduct occurs is a sliding scale that determines whether a claim exists.

If you have experienced intimidation, ridicule, insult, or other abusive behavior because you belong to one of the protected groups identified above you may have suffered harassment. It must be severe or have occurred with such regularity that it changes your work conditions.  Would a reasonable person agree that it is an abusive environment?  Usually a culmination of severity and regularity results in a finding of an hostile work environment; the phrase you’ve heard so much about.

Single incident

To determine if a single incident is harassment it must be severe; physical assault for example. The majority of case law establishing single incident hostile work environments can be found in sexual harassment cases. Single incident hostile work environment claims are rarely asserted except for in sexual harassment style claims.

What to do.

If you want to stop the harassment, complain.  If you’re not sure but you reasonably believe what is happening to you is harassment or discrimination it is very important to let your employer know so they can correct it.  Unfortunately, sometimes they fail to do the right thing, so protect yourself by complaining in writing.

Complain in Writing

Never make the complaint verbally.  Some human resources managers or supervisors will deny you ever made a complaint.  This becomes a problem if litigation is necessary.  Always complain in writing.  The best method to complain is by email or fax. If you fax your complaint, get a copy of the confirmation report provided by the fax machine. 

Sometimes companies have anonymous hotlines. Employees call in and report things anonymously. Only problem is that if the employer retaliates against you (terminate you or force you to quit) you will have a difficult time proving you made the complaint and that it was you. It may allow your employer to wiggle out of liability since they could possibly deny they knew it was you. A complaint in writing signed by you is much stronger evidence to prove retaliation later.

Don't record conversations. It's a crime in California to record someone without consent. It can't be used in evidence and will create problems in the future if litigation is necessary. It is better to take detailed notes of a conversation, or write down what was said right after. This is much easier to use in litigation.

Send the complaint to the person designated in your company policy. If there is no policy or you are not aware of one, or that designated person is the same wrongdoer, send the email to human resources or the first level of management above the harasser.

This can be a scary process and navigating this process with an attorney will make it go smoother. Having an attorney is best since once an investigation starts your attorney can help you navigate the waters if your employer chooses to do the wrong thing. Sometimes employers retaliate because of the complaint. They start attacking your performance and attempt to get you to quit.

The complaint should identify the protected group. (eg. I believe I have been discriminated against or harassed because of my [race, gender, disability, etc.]). It should state the reasons why you believe you have been discriminated against or harassed. It should focus on why your membership in the protected group is the reason behind the mistreatment.  It should state who is responsible and when it occurred.  It should be short, simple and straight to the point.

AVOID block paragraphs with single spaces with no separate thoughts that make you appear psycho. Simple and short is best. If you fear you might say too much or not enough involve an attorney they can help you. During our free consultation we can discuss making a complaint with you.

Conclusion

So now you have a general idea of what a “hostile work environment” is and is not.  If the conduct is directed to you because of your membership to a protected class, and the nature of the abuse is severe or pervasive to the extent that it interferes with your work environment, you may be in a hostile work environment.  Hostile work environments are against the law and you have rights.

The image in this article was provided courtesy of Ambro / FreeDigitalPhotos.net