When it comes to the defining what exactly “harassment” is, many people might sympathize with US Supreme Court Justice Potter Stewart’s comment on obscenity: “I can’t define it, but I know it when I see it.” California, however, has legally defined workplace harassment, and it serves as a potent deterrent to misconduct in many cases. Although sexual harassment serves as a media magnet, many other forms of workplace harassment exist.
All forms of harassment, other than threats and physical assaults, are considered harassment only if they are based on an individual’s membership in a named “protected class.” These protected classes include:
Race, color, national origin or ethnic background
Physical or mental disability
Gender (including sexual harassment)
Military or veteran status
These categories include everyone, not just people defined as minorities. Under the right circumstances, for example, a heterosexual could win a claim for sexual orientation discrimination. Nevertheless, California law specifically excludes certain types of disabilities from being used as the basis of a harassment claim. It is not “discrimination against the mentally disabled,” for example, to fire a kleptomaniac employee who steals from the company.
Specific Conduct that Constitutes Harassment
It would be impossible to list all specific acts that could constitute harassment in a California workplace. Some conduct does not constitute harassment, however; being insulting and rude, for example, does not constitute harassment unless it is based upon a person’s membership in a protected class.
Once threats, violence, or discrimination are involved, however, behavior can be classified as harassment if it (i) creates a hostile work environment, or (ii) constitutes quid pro quo sexual harassment.
Hostile work environment harassment: The conduct must be either severe or frequent, it must constitute objectively offensive conduct, and the victim must have been subjectively offended by it. Frequent ethnic slurs could certainly qualify, and even repeated, unwelcome request for a date by a co-worker might qualify.
Quid pro quo sexual harassment: This type of harassment occurs when a job benefit is offered in exchange for sexual favors, if a job benefit is withheld in retaliation for refusing sexual favors, or if either of the foregoing is promised or threatened.
Liability for Sexual Harassment
When a company employee harasses a co-worker, the company itself can be held liable for monetary compensation (in addition to the perpetrator) if the perpetrator was a supervisor – even if the company itself was without fault. Even if the perpetrator was not a supervisor, the employer can also be held liable if it knew or should have known of the harassment and failed to respond appropriately.
Manage Your Legal Risks through Decisive Action
If you have concerns about workplace sexual harassment issues – whether a dispute that has already erupted or a potential problem that you would like to head off – call CKB Vienna today or contact us online to schedule a consultation. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.