Workplace Harassment in California: Who is Protected?
Almost every California worker is protected from workplace harassment under federal and California law. The Fair Employment and Housing Act (referred to as “FEHA”) is a California state law that governs many types of discrimination and harassment faced by employees, interns, and job applicants.
Types of Workplace Harassment
Unlawful workplace harassment may arise when an employer or person directs unwelcomed, negative, or inappropriate conduct and/or policies at an employee based on specific protected characteristics. The FEHA contains two forms of harassing behavior: (1) Quid pro quo and (2) Hostile work environment.
(1) Quid pro quo harassment occurs when a managerial/supervisory agent requests an employee to engage in sexual activity to obtain some work benefit, such as a promotion or raise.
(2) Hostile work environment harassment occurs when the harassing behavior meets a two-part test: (1) the conduct references and/or happens in reaction to a “protected class or characteristic,” and (2) the harassing behavior is severe and/or pervasive.
Which Characteristics Targeted by Workplace Harassment Are Protected?
The FEHA prohibits illegal harassment based on characteristics, including but not limited to:
- Race
- Color
- National Origin/Ancestry
- Sex/gender (along with pregnancy, childbirth, breastfeeding, or related medical conditions pertaining to reproductive health, gender transitioning, etc.)
- Gender identity
- Age (40 +)
- Medical Conditions
- Disability
- Marital Status
- Religion/Religious affiliation
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When Does Harassing Behavior Become Legally Actionable?
To rise to the level of illegality, the behavior and/or policies must create a hostile work environment that any other reasonable person could not endure. A few examples of hostile work environment harassment can include but are not limited to: racial and/or sexual slurs, offensive jokes, epithets, name calling, physical/verbal threats, ridicule, intimidation, or any other conduct that directly interferes with work performance.
If severe and pervasive harassing conduct occurs without a targeted protected characteristic and/or class, employees are less protected. However, the employee may have a case if the harassment is a threat to an employee’s personal safety or sexual harassment.
What Should Be Done If You Believe You’re a Victim of Workplace Harassment?
Encountering any form of workplace harassment can be an immensely distressing experience; however, victims do not need to and should not suffer in silence. Our labor and employment attorneys suggest that employees facing harassment take a few steps:
- Take personal notes about the workplace harassment, such as tracking date(s), name(s), and specific incidents of any harassing behavior.
- Inform the organization’s Human Resources Department or a direct supervisor about the harassment. We recommend notifying the employer/Human Resources Department expressed in writing, such as an e-mail or text message. Employers are encouraged, and sometimes required, to take reasonable preventative measures and ensure their workplace is free of harassment. However, even if informing the employer does not stop the harassment, this step helps the employee make their case if they eventually need to take legal action.
- File a complaint with the California Department of Fair Employment and Housing (“DFEH”). This administrative step is required before an employee can file a workplace harassment civil lawsuit in California.
- Wait for the DFEH to provide a “right to sue” notice. Once this notice is issued, the employee and their attorney may file a civil lawsuit against the employer and/or the harasser seeking monetary damages.
For inquiries regarding workplace harassment under California’s Fair Employment and Housing Act or to schedule a confidential consultation regarding your case, contact M&A Law Offices.