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Harassment

California laws prohibit harassment in the workplace. If you are looking for an experienced Oakland harassment attorney, look no further than Spencer Young Law!

What is “Harassment” in the Workplace?

Harassment is a form of discrimination against someone based on one or more of that person’s protected characteristics. This can include sexual harassment, but not all harassment is sexual harassment.

What Laws Protect Me Against Workplace Harassment?

The California Fair Employment and Housing Act (FEHA) prohibits workplace discrimination, including harassment.

What Characteristics are Protected From Harassment?

Race, color, national origin, religion, ancestry, physical or mental disability, medical condition, genetic information, sex, gender, gender identity or expression, sexual orientation, marital status, or military and veteran status.

How Does Harassment Differ From Other Forms of Discrimination?

Harassment is conduct that is unwanted and inappropriate. Other forms of discrimination involve conduct that may be appropriate if carried out for non-discriminatory reasons. If you are unsure whether something you have experienced is harassment or discrimination, call the Bay Area harassment and discrimination attorneys at Spencer Young Law.

Example 1: Marla’s supervisor calls her a “stupid bimbo” whenever she makes a mistake. This is an example of harassing conduct because there can be no legitimate reason for a supervisor to call someone an insulting name and doing so is not a regular part of a supervisor’s job.

Example 2: Marla’s supervisor fires her simply because he doesn’t want a woman in her position. This is an example of discrimination, but not harassment, because hiring and firing people is a regular part of a supervisor’s job.

Is Harassing Conduct Always Illegal?

Conduct that is unwanted, inappropriate, and discriminatory must still be either severe or pervasive to rise to the level of illegal harassment. One stray inappropriate remark would not rise to this level. If you are unsure whether an incident is severe, or whether a pattern of bad conduct is pervasive, talk to the Oakland harassment attorneys at Spencer Young Law.

Example 1: Dmitry is of Russian ancestry. On one occasion, his supervisor calls him “Boris,” thinking this is funny because Boris was a Russian cartoon character. The supervisor sees that Dmitry isn’t laughing and does not repeat this. While this is unwanted, inappropriate, and based on a protected characteristic, it is neither severe nor pervasive and would not independently support a harassment claim.

Example 2: Dmitry’s supervisor calls him “Boris” every day. Dmitry has told the supervisor that this is unwanted and offensive. The supervisor nonetheless persists. Because the harassing conduct occurs every day and in spite of requests that it stop, the conduct is pervasive and rises to the level of illegal harassment.

Example 3: Mariam wears a headscarf in observance of her religion. It does not interfere with her work. One day, her supervisor pulls off the headscarf at a meeting and says, “leave your false religion at home.” While this was only one incident, it was severe enough to support a harassment claim because Mariam experienced unwanted physical contact, was humiliated in front of others, and had a very important part of her religion disrespected.

Am I Only Protected Against Harassment From My Boss?

No. Your employer is automatically liable for harassment by your supervisor. If a non-supervisory employee is harassing you, your employer is liable if they know about the harassment and have failed to take prompt corrective action. If the harasser is not an employee at all, your employer’s liability depends on how much control it actually has over that person’s actions.

Example 1: The general manager of a grocery store repeatedly insults and threatens Janelle based on her veteran status. Janelle has never reported this to the business owner. The owner is liable for the manager’s harassment even if the owner doesn’t know about it.

Example 2: Bianca and Ivan are teachers at the same school. Ivan walks with a cane. Every day, Bianca mocks the way that Ivan walks by acting out a limp. Ivan has never confronted Bianca about this, but he did complain about this to the principal. Ivan doesn’t know if the principal took any action, but the harassment continues. The school is liable for Bianca’s harassment because they knew of it and whatever action they took was not corrective.

Example 3: Shirley is a customer service worker at a rental car company. After returning a vehicle, a customer asks for her phone number. She declines. He then starts coming several times a week to pester her about dating him. Shirley complains to the manager, who says that he can’t control what customers do. The company is liable for the customer’s harassment because it knew of it and failed to take prompt corrective action. The company had control over whether the customer came on site.

Example 4: Garrett is a zookeeper. A visitor takes a photo at the zoo and uploads it on the Internet. Garrett happens to be in the background. A blogger creates a “meme” mocking the color of Garrett’s skin and the photo goes viral. It receives hundreds of mean and racist comments, and even a few threats. Garrett reports this to his employer. While the employer knows about the harassment, they do not have much control over what happens on the Internet. They are probably not liable.

Does FEHA Protect Me if I’m Not an Employee?

It might. If you are an unpaid intern or volunteer, a job applicant, or are providing services pursuant to a contract, you are protected from harassment.

Example 1: Sylvia is retired and volunteers at a museum. The museum director makes frequent negative comments and jokes about Sylvia’s age. The museum is liable for harassment even though Sylvia is not an “employee” in the usual sense.

Example 2: Miguel is a plumber for a plumbing company. The company enters a contract with a restaurant to provide services when needed. Miguel is sent to the restaurant to fix the kitchen sink. A cook calls Miguel a racial slur and spits in his face. The restaurant is liable for the cook’s conduct if it knows about the conduct and fails to correct it. The plumbing company is liable if it doesn’t ask the restaurant to stop the harassment, or take other steps to protect Miguel.

If you think you have experienced harassment at work, call the Bay Area harassment attorneys at Spencer Young Law today for a free consultation.

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