Harassment on the job that is motivated by an employee’s national origin, race, or gender is illegal in California under the Fair Employment Housing Act (FEHA), as well as under the federal law, Title VII. In order to have a case, an employee must be able to show the harasser was motivated by national origin, race, or gender discrimination.
The California Fair Employment and Housing Act (FEHA) prohibits discrimination in the form of harassment based on the sex of an employee. Harassment includes discrimination based on pregnancy, childbirth or related medical conditions. Sexual harassment also includes unwanted sexual advances. The two main categories of sexual harassment are “quid pro quo” harassment and “hostile work environment” harassment. Sexual harassment can also include non-sexual behavior, such as male supervisors yelling in the workplace at female employees in a more forceful or frequent manner than at male employees.
Screaming and yelling by male supervisors to female employees at work may constitute gender discrimination that is actionable if the screamer yells more forcefully or more frequently at female employees than at male employees and in a manner that affects women more adversely than it affects men in the workplace. Such non-sexual behaviors can constitute gender discrimination in the nature of a hostile work environment, as confirmed in the case of E.E.O.C. v. National Education Association by the Ninth Circuit of the United States Court of Appeals in September 2005.
“Quid pro quo” sexual harassment is when a supervisor makes sexual conduct of an employee a condition for employment benefits or advancement or a condition for avoiding adverse employment action. Adverse employment action may include poor performance reviews and preclusion from advancement or salary increases.
“Hostile work environment” sexual harassment occurs when an employee is subject to unwelcome advances or the use sexual innuendos or offensive gender-related language that is sufficiently severe or pervasive from the perspective of a reasonable person with the same fundamental characteristics as the offended employee. This type of harassment must be sufficiently severe or pervasive to alter the conditions of the offended employee’s employment and create an abusive environment. A single instance of sexual harassment in the “hostile work environment” context may be sufficient, but repeated instances increase the severity of the events, so that a reasonable person would be more likely to find the conduct sexually harassing due to its repetition.
It is possible for an employee to make a hostile work environment claim when the harassment is not directly directed to the complaining employee, if the harassment permeated the complaining employee’s work environment. Thus, an employee can make a hostile work environment claim if the employee witnessed the harassing conduct and the conduct was severe or pervasive enough to be considered harassment by a reasonable person with the same fundamental characteristics as the complaining employee.
In regard to unwanted sexual advances, a complaining employee must generally show that he or she gave notice that the advances are unwelcome.
Although favoritism by a supervisor towards an employee with whom the supervisor is having a consensual sexual affair does not ordinarily constitute harassment of other employees, a pattern of sexual favoritism may constitute a hostile work environment in the event that the message by management is that sexual affairs are a way to get ahead in the workplace.
Discrimination based on pregnancy, childbirth, or related medical conditions is prohibited by both the California Fair Employment and Housing Act (FEHA) and the federal Equal Employment Opportunity Commission (EEOC).
California Government Code, section 12945(b)(2) requires that if your employer has a policy or practice that requires that temporarily disabled employees be transferred to less strenuous or hazardous positions while they are disabled, then the employer may not refuse to transfer you while you are pregnant, if you ask to be transferred according to this practice.
Also, an information sheet distributed by the California DFEH states that an employer is required to transfer a pregnant woman to a less strenuous or hazardous position: “[i]f an employee’s health-care provider certifies the transfer is medically advisable and the request can be reasonably accommodated by the employer. An employer is not, however, required to create a position or displace another employee.”
In addition, according to guidelines published by the FEHA, it is unlawful for an employer to ask a prospective employee whether or not she is or intends to become pregnant.
Sexual harassment covers considerably more ground than a boss threatening to fire you if you refuse sexual advances. Although every case has a unique set of surrounding circumstances, courts have held that the following behavior constitutes illegal sexual harassment:
- Offensive sexual comments, including repeated sexual innuendo, slurs, crude remarks, and obscene stories or jokes.
- Communication that is of a sexual nature or sexually abusive, including letters, notes, facsimiles, e-mails or public postings.
- Sexual propositions, insults, and threats.
- Sexually-oriented demeaning name-calling.
- Persistent unwanted sexual or romantic proposals or attention.
- Leering, whistling, or other sexually suggestive sounds or gestures.
- Displaying pornographic pictures, calendars, cartoons, websites, or other sexually explicit material in the workplace.
- Coerced or unwelcome touching, patting, brushing up against, pinching, kissing, stroking, massaging, squeezing, fondling, spanking or tickling.
- Explicit or implicit pressure for sexual favors.
- Coerced sexual intercourse that is demanded as a condition of employment or academic standing.
An employer generally has to be on notice that a co-worker, or even a vendor, is harassing an employee before the employer is responsible. However, an employer is strictly liable for the sexual harassment of an employee’s supervisor. In addition, the Fair Employment and Housing Act (FEHA) requires employers to take reasonable steps to prevent unlawful harassment in the workplace. For companies that have fifty (50) or more employees, FEHA requires at least two hours of classroom or other interactive training regarding sexual harassment for all supervisors.
You probably know if you have been subject to “quid pro quo” sexual harassment, which is where a supervisor has demanded sexual conduct as a condition for benefits or advancement or as a condition for avoiding adverse employment action. The more difficult case to evaluate is a claim of hostile work environment. You should discuss the particular facts and circumstances of a hostile work environment claim with an experienced sexual harassment discrimination attorney. You may contact the Broderick Saleen Law Firm for advice.
An employee has three years from the date of the incident to make a claim to the Department of Fair Employment and Housing (DFEH). The DFEH will issue a complaint against the employer and give the employee a “right to sue” letter. Most often the case is not resolved by the DFEH, and the employee can use the “right to sue” letter to bring a lawsuit for damages. The employee then has one year from the date of the DFEH right to sue letter to file a complaint in California Superior Court.
The federal law under Title VII requires a shorter time for the employee to bring the administrative complaint. An employee has 300 days from the date of the last incident to bring an administrative complaint. The complaint in the federal system goes to the Equal Employment Opportunity Commission (EEOC), where the employee can similarly get a “right to sue” letter for a meritorious claim.
For discrimination and sexual harassment claims that are related to the workplace, an employee is required to get a “right to sue” letter from either the California Department of Fair Employment and Housing (DFEH) or the federal Equal Employment Opportunity Commission (EEOC). An employee should consult with an experienced attorney before filing these complaints on their own, so that they can understand their rights and develop a strategy that will best meet their personalized goals.
Under California law, the Fair Employment and Housing Act (FEHA) declares the public policy of the state is to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgement on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, MARITAL STATUS, SEX, or age. (California Government Code § 12920, emphasis added)
In the absence of a contract or collective bargaining agreement for a union member that precludes an employer from termination or adverse employment action, employees in California are presumed to be employees at-will. An employee at-will can be fired at any time, for any reason or for no reason at all, except an employee cannot be fired for discriminatory reasons, such as those listed in FEHA referred to above, or for a reason against public policy. An example of a public policy reason is a whistle blower who contacts a government agency with complaint that the employer is violating government regulations in the workplace; if the employer retaliates against the employee with adverse employment action, the retaliation would be considered actionable as against public policy. Title IV of the federal law also makes sexual harassment illegal, as interpreted by federal case law.