Harassment in the workplace can be disruptive and cause a great deal of stress. It is important to know your rights, and understand the types of harassment that your employer is under an obligation to prevent. Not all harassment by a co-worker is against the law. It is not enough if a coworker is just generally being mean. In order to establish a claim regarding a hostile work environment, the harassment must be based upon a protected class or activity and generally speaking, it must be constant severe and pervasive.
In California, The Fair Employment and Housing Act (FEHA) prohibits harassment and discrimination in employment because of race, color, religion, sex (gender), sexual orientation, marital status, national origin, ancestry, mental and physical disability, medical condition (cancer or genetic characteristic), age (40 and above), pregnancy, denial of medical and family care leave, or pregnancy disability leave and/or retaliation for protesting illegal discrimination related to one of these categories. (California Government Code §§12940,12945, 12945.2)
Harassment based on one of these protected categories can take all forms: verbal comments and gestures, writings, such as memos, emails, text messages, fliers and posters, other visuals in the form of photographs and video etc… Even inappropriate conduct directed at others may constitute harassment. Whether the conduct rises to the level of harassment, creating a hostile work environment, will be measured from the perspective of a reasonable person who is a member of the protected class (eg. a reasonable woman subjected to sexual comments by a male coworker; a reasonable person of the same race or ethnic group as person alleging harassment.)
The FEHA requires employers to take all reasonable steps to prevent harassment from occurring. While employers may be strictly liable for harassment by a supervisor or manager, where the harassment is by a coworker, the employer must be aware of the conduct in order to be liable. Harassment by an employee, other than a supervisor, is unlawful only if the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action. (California Government Code §12940(j)(1)).
Thus, the employer must be put on notice of the harassment by the coworker. Knowledge can be established based on a supervisor’s observation of the offensive conduct, but in most instances, it is best to report the harassment. Therefore, if you have experienced harassment by a coworker, it is important that you make a complaint to someone in management, preferably someone in human resources. It is recommended that the complaint be in writing and that you keep a copy of the complaint. Once you have reported the harassment to the appropriate person or persons, the employer is under an obligation to take corrective action, to prevent further harassment and protect against retaliation.
Workplace harassment is a very broad topic that requires a detailed analysis of the particular facts and circumstances in order to determine potential liability. This article has only touched on the general scope of the law and is for information purposes only. This article is not intended to give legal advice. If you are experiencing what you believe to be workplace harassment or a hostile work environment, please contact Stevens & McMillan at (800) 738-3353 for a free consultation.
