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