Posted on 08/24/2022
Does your employer yell or scream at you? Do you feel treated unfairly at work? Do you think you may be getting harassed in the workplace?
The words or actions of your supervisor or co-worker may not rise to the level of actionable harassment under the law.
Harassment at work consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives as the California Supreme Court stated in Roby v. McKesson Corporation ((2010) 47 Cal. 4th 686, 707). Common necessary personnel management actions (such as various disciplinary actions) do not come within the meaning of harassment. These actions may retrospectively be found discriminatory if based on improper motives, but in that event, the remedies provided by the Fair Employment and Housing Act (“FEHA”) are those for discrimination, not harassment based on the Court’s holding in Roby.
Nevertheless, official employment actions constituted the evidentiary basis for harassment in Roby because the supervisor used those official actions as his means of conveying his offensive message. The harassment needs to be based on a protected characteristic or status under California Law which includes, but is not limited to race, gender, disability, national origin, sexual orientation, medical or physical condition, and/or age.
The harassing conduct needs to be severe or pervasive such that a reasonable person in your circumstances would have considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive.
The California Fair Employment and Housing Act (“FEHA”) makes it a separate unlawful employment practice for an employer to “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Cal. Government code § 12940, sub. (k).) In another section, the FEHA requires employers to distribute educational material to their employees regarding sexual harassment law and company procedures. (Cal. Government code § 12950).
The FEHA imposes two standards of employer liability for harassment, depending on whether the person engaging in the harassment is the victim’s supervisor or a nonsupervisory co-employee. The employer is liable for harassment by a nonsupervisory employee only if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action. (Cal. Government code § 12940, sub. (j)(1).)
Because a harasser need not exercise delegated power on behalf of the employer to communicate an offensive message, it does not matter for purposes of proving harassment whether the harasser is the president of the company or an entry-level clerk, although harassment by a high-level manager of an organization may be more injurious to the victim because of the prestige and authority that the manager enjoys. When the harasser is a supervisor, the employer is strictly liable (i.e. responsible) for the supervisor’s actions. When the harasser is a nonsupervisory employee, employer liability turns on a showing of negligence (that is, the employer knew or should have known of the harassment and failed to take appropriate corrective action). (Cal. Government code § 12940, subd. (j)(1).)
The FEHA makes it a separate unlawful employment practice for an employer to “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”
Since your employer is responsible for harassment by a nonsupervisory employee only if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action you have to complain to your employer if you feel you are a victim of workplace harassment. This also gives your employer an opportunity to remedy the situation and you may avoid termination. Further, if you are terminated after you lodge a legally protected complaint about discrimination or harassment, then your complaint becomes evidence of retaliation. Therefore, it is important to complain of any unfair employment practices while you are still working and to make those complaints, in writing, so you have proof of the complaints if you do eventually bring an employment case for harassment or wrongful termination.
Further, your complaints should be in writing to prove that the complaints were in fact made. This establishes persuasive evidence to show that you were being discriminated against. Your employer may deny that you complained of unfair/discriminatory employment practices unless you have written documentation to support it. You should also keep a contemporaneous journal so you can accurately recall and document your employer’s actions. Keep a copy of all written communications in the event that your employer destroys or deletes any communications in the future.
Your employer may escape responsibility for those damages, and only those damages, that the employee more likely than not could have prevented with reasonable effort and without undue risk, expense, or humiliation, by taking advantage of the employer’s internal complaint procedures appropriately designed to prevent and eliminate harassment, such as sexual harassment, in the workplace. Employees may be reluctant to report their supervisors to higher management and an employee will often attempt informal negotiation with a supervisor, make efforts to encounter the supervisor or resort to other informal strategies. Delay that results from an employee’s initial resort to such non-confrontational means of dealing with supervisor harassment will have to be carefully evaluated to determine whether it was reasonable in a particular employment setting.
You can establish harm by proving that the harassment caused emotional distress, embarrassment, and anxiety or that you suffered economic harm if you were demoted with less pay or terminated due to the harassment. A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.
JCS Law Firm works with Southern California Workplace Harassment clients, helping them recover the full amount of compensation they deserve. Contact us today to schedule a free, no-obligation consultation to discuss your case and get started filing your claim. With our client satisfaction guarantee, you have nothing to lose and everything to gain!
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