An employer may not harass an employee on account of his or her race or ethnicity. Cal. Gov. Code § 12940(j).
Although harassment claims based entirely on one's skin color are sparse, such harassment is indeed prohibited by FEHA. Thus, FEHA protects employees from harassment about skin color in addition to protecting them from harassment motivated by race. As well, FEHA protects not only minorities, but members of all races. Griggs v. Duke Power Co., (1971) 401 US 424, 430-31. In fact, racial harassment may occur between members of the same race, depending on whether such harassment perpetuated a hostile work environment. Ross v. Douglas County, Nebraska (8th Cir. 2000) 234 F3d 391, 396.
The test for proving an incident of racial harassment requires the plaintiff to demonstrate:
- "He was a member of [a particular race],
- He was subjected to unwelcome racial harassment,
- The harassment was based on race,
- The harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment, and
- The [employer or entity] was liable for the harassment." Thompson v. City of Monrovia, (2010) 186 C4th 860, 876.
For claims of harassment, plaintiffs must show that the harassment was so severe or substantial that it resulted in a hostile work environment which a reasonable person belonging to the same race as the plaintiff would also perceive. National Railroad Passenger Corp. v. Morgan, (2002) 536 US 101, 116. Further, the plaintiff should show a, "concerted pattern of harassment of a repeated, routine or a generalized nature." Davis v. Monsanto Chem. Co., 858 F2d at 349. However, if there is a hostile work environment, it is possible for the plaintiff to bring a claim of racial harassment even if such hostility was not directly targeted at the plaintiff but rather to other individuals or groups. McGinest v. GTE Service Corp. (9th Cir. 2004) 360 F3d 1103, 1117.
Aside from participating in harassment himself or herself, it is also unlawful "for an employer....to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." Cal Gov Code ' 12940(k). In fact, employers in many situations will still be liable for merely failing to correct harassment without a showing that the employers even had actual or constructive knowledge of the harassment taking place.
As well, a harasser's animus towards an employee's national origin or ancestry may be the basis for racial discrimination, even though national origin and ancestry are separately protected classes under FEHA. Cal. Gov. Code §12940(a).
There are many ways in which racial harassment or a hostile working environment may result without verbal or physical harassment. For instance, an English-only policy at the workplace may potentially create a hostile work environment for certain Hispanic employees. Montes v. Vail Clinic, Inc. (10th Cir. 2007) 497 F3d 1160, 1170.
Racial harassment is normally a separate cause of action from racial 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
If you have experienced racial harassment at your workplace, contact the leading California racial harassment lawyers at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.