FEHA protects employees against harassment. This includes unwelcomed sexual advances made by a male to a female, female to a male, as well as same-sex harassment. Cal. Gov. Code § 12940(j)(1). FEHA protects employees not only from sexual harassment but also harassment based on an employee's:
- Sex or Gender
- Physical Disability, Mental Disability, or Medical Condition
- Race or Color
- Religious Creed
- National Origin or Ancestry
- Marital Status
- Age, or
- Sexual Orientation Cal. Gov. Code § 12940(j).
The protections of harassment apply to all employees and independent contractors. It is not limited by the amount of employees an employer employs. Cal. Gov. Code ' 12940(j).
The harassment is unlawful if the employer "or its agents or supervisors, knows or should have known of" the harassing conduct and fails to take "immediate and appropriate corrective action." Cal. Gov. Code § 12940(j). Harassment is defined as including but not limited to:
- "Verbal harassment, e.g., epithets, derogatory comments or slurs;"
- "Physical harassment, e.g., assault, impeding or blocking movement, or any physical interference with normal work or movement;"
- "Visual forms of harassment, e.g., derogatory posters, cartoons, or drawings on a basis enumerated in the Act;" or
- "Sexual favors, e.g., unwanted sexual advances which condition an employment benefit upon an exchange of sexual favors." 2 CCR 7287.6.
If the harassment is found to be unlawful, the employer himself or herself may be responsible for the harassment enacted by others if "its agents or supervisors, knows or should have known of" the harassing conduct and failed to take "immediate and appropriate corrective action." Cal. Gov. Code § 12940(j). In determining whether an employer is liable for the actions of nonemployees, the employer's control and any other legal responsibility which the employer may have with respect to the conduct of those nonemployees is considered. Id.
Consequently, employers must take all reasonable steps to prevent harassment from occurring. Cal. Gov. Code ' 12940(j).
Generally there are "two distinct categories of sexual harassment claims: quid pro quo and hostile work environment." Fisher v. San Pedro Peninsula Hospital, (1989) 214 Cal. App. 3d 590, 607.
- Quid pro quo harassment occurs when submission to sexual conduct is made a condition of....employment benefits. Id.
- The harassment must occur by the supervisor (person with higher authority over employee) while the supervisor is acting as an agent of the employer. State Dept. of Health Services v. Superior Court, (2003) 31 Cal. 4th 1026, 1041.
- Hostile work environmental occurs when the sexual harassment creates a hostile or abusive work environment regardless of whether the individual suffers tangible or economic loss. Id.
In determining whether the harassing conduct is severe or pervasive enough to constitute a hostile work environment, courts look to the factors of:
- Athe nature of the unwelcome sexual acts or works (generally physical touching is more offensive than unwelcome verbal abuse)
- the frequency of the offensive encounters,
- the total number of days over which all of the offensive conduct occurs,
- and the context in which the sexually harassing conduct occurred. Fisher v. San Pedro Peninsula Hospital, 214 Cal. App. 3d 590, 610.
Harassing conduct must be found severe and pervasive enough to create an objectively hostile or abusive work environment ; an environment that a reasonable person would find hostile or abusive, and the victim must subjectively perceive the environment to be abusive. Harris v. Forklift Sys., (1993) 510 U.S. 17, 21-22.
- The objective standard is perceived through the perspective of a Areasonable employee." San Pedro Peninsula Hospital, (1989) 214 Cal. App. 3d 590, 609.
It is unlawful "for an employer....to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." Cal Gov Code ' 12940(k).
- The Trujillo v. North County Transit Dist. case creates a tort under this statute with the usual elements of a tort, enforceable by private plaintiffs, [who] have established: defendants "legal duty of care toward plaintiffs, breach of duty (a negligent act or omission), legal causation, and damages to the plaintiff.", (1998) 63 Cal. App. 4th 280, 286.
Harassment is normally a separate cause of action from discrimination. However, harassment is actionable as "discrimination" if it is "so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." Clark County School Dist. v. Breeden, (2001) 532 US 268, 270.Contact Us
For more information, contact California's top employment harassment lawyers at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.