No person should be forced to endure workplace harassment.  Although widely recognized, employers, managers, and supervisors do not always honor this oft-espoused precept.  All too often, California employees must tolerate severe workplace harassment.  Employer-perpetrated harassment, usually undertaken by a deplorable manager or supervisor, can garner feelings of helplessness because the employee may feel as if they must choose between challenging bullying or putting food on the table.

This choice is false. California employees have the right to work free from harassment.  The law encourages and protects acts to stop workplace bullying.  Where an employer fails to respond, forcing a resignation, the employee has the right to bring a civil action because of workplace harassment and intimidation.  Click here to learn more about civil actions premised on employer harassment.

Types of Workplace Harassment

In California, harassment can be verbal, physical, or visual.  Verbal harassment includes epithets, derogatory comments or slurs, repeated romantic overtures, sexual comments, and jokes, or prying into personal affairs.  Physical harassment includes unwanted touching, rubbing against someone, assault and physical interference with movement or work.  Visual harassment includes derogatory cartoons, drawings, posters, memes, or lewd gestures.  2 C.C.R. § 11019(b)(1).

Sexual harassment garners special legal treatment that California courts classify as either quid pro quo or hostile environment sexual harassment.  Quid pro quo sexual harassment occurs where an employer conditions job benefits upon submission to unwelcome sexual conduct and advances. Hostile environment sexual harassment occurs where unreasonably pervasive sexual behavior unreasonably interferes with employment conditions and creates an abusive working environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986); Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 4d 590, 607 (1989).  Both types of sexual harassment fall under California’s Fair Employment & Housing Act (“FEHA”). Roby v. McKesson Corp., 47 Cal. 4th 686, 706 (2009).

Unlike sexual harassment claims, employees may only premise other claims of workplace harassment on a hostile environment theory.  California courts recognize harassment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. Government Code § 12940(j)(1).

Where workplace harassment involves violence or threats of violence, the employee may have a claim under Civil Code sections 51.7 and 52.1.

Examples of Harassment

  • A manager who forced an African-American employee to do labor-intensive work immediately upon his return from medical leave for back surgery found liable for racial harassment in violation of FEHA.  The manager overlooked the employee’s objection, stating, “Stop whining…a big black guy like you…I thought you guys were tough.”  On another occasion, the manager stated that, “[a] big black guy like you complains too much.”
  • A supervisor customarily referred to Latino employees as “motherfuckers,” and other racial epithets.  Additionally, the supervisor routinely demeaned the Latino employees on the basis of their race, national origin, and for their perceived limited English.  Notably, the supervisor threatened to call Immigration on a Latino employee.
  • African-American and Latino corrections officers alleged their white prison coworkers regularly directed racial epithets and made racial jokes at them.  Additionally, the white officers posted racist cartoons and photos, including a photograph of a black man with a noose around his neck. The white officers also left Ku Klux Klan literature in the break room and locked the African-American and Latino officers out of the restrooms.
  • An employer mandated English-only policy qualified as racial harassment because it was not connected to a business necessity.
  • A manager made numerous jokes about an employee’s race, including, “I know how to train you Indians.”  Subsequently, the manager left bananas and banana peels in the employee’s workstation.  The manager regularly wore garments exhibiting the Confederate flag.  After the employer banned such garments, the manager and another employee confronted the employee outside at night.
  • A manager made several statements demeaning an employee’s religion, including “[y]our religion is inferior to mine,” “I am a Mormon and I am better than you because of it,” and “You are less than me because of your religion.”
  • At one factory, employees alleged that managers regularly used racially demeaning language and epithets such as “boy,” drew racist effigies and swastikas, required African-American employees to get on their hands and knees to scrub the floor, assigned African-American employees menial tasks for which they were overqualified, and often reassigned African-American employees to job locations far from their homes.

If you have been forced to endure similar workplace harassment, contact Astanehe Law for your free legal consultation.  You have rights, including the ability to file a civil action against your employer!

Examples of Sexual Harassment

Quid Pro Quo

  • A supervisor asked his subordinate female employee to lunch to discuss an upcoming evaluation and anticipated promotion.  During the meeting, the supervisor stated that her continued success and advancement depended on her agreeing to a list of sexual demands.  Further, the court held that the demands amounted to an additional and unlawful “condition of employment” imposed because of gender.
  • A supervisor’s repeated sexual remarks and promises of job enhancements in exchange for a sexual relationship made to a female employee qualify as quid pro quo workplace sexual harassment.  The supervisor also threatened to eliminate the female employee’s position should she reject his sexual invitation.
  • An employer giving an employee a negative performance report following her complaint about a supervisor’s excessive offensive sexual banter established quid pro quo workplace sexual harassment.

Hostile Work Environment

  • A twenty-five-year-old woman secured a favorable judgment and punitive damages for workplace hostile environment sexual harassment.  While alone and in a car, her direct supervisor put a hand on her knee and asked if she ever “fooled around.” Despite her sustained rejection of all sexual advances, the supervisor continued a multi-year campaign of physically and verbally harassment, including touching her breasts, pinching her buttocks, grabbing her crotch, inquiring about her lingerie, asking about her genitals, and attempting to converse about her sex life. After company management refused to take any action, the female employee was forced to resign.
  • A jury found sexual harassment to exist where a supervisor asked if an employee was married and referred to her as “old hag” when she replied no.  The employee reported the exchange.  Instead of taking action, management told the employee to “be careful.”  During a subsequent company party, the supervisor pulled the employee’s arm so that their bodies were touching, looked her up and down, and asked if she attended for him. While the two were alone in the supervisor’s office, the supervisor asked where the employee lived, put his arm around her, rubbed her breasts, and asked if she had something special for him.
  • A department manager sent his secretary, who had survived a violent rape, numerous offensive emails, including containing pornographic videos and images of simulated rape and containing vulgar and sexually explicit language. The secretary regularly complained to the office manager, but to no avail.  Accordingly, she was forced to resign.
  • A manager gave a subordinate employee a gift card for Christmas containing a lewd note. After the employee did not respond, the manager asked the employee out for a romantic date.  She declined.  However, the manager continued to leer and stare at her in a sexually suggestive manner, even while in the presence of clients and coworkers.  The manager proceeded to send employee sexually explicit notes. He asked another coworker who lived in the same apartment complex as the employee for information about the employee and expressed his desire to move into the building.  The manager scheduled his breaks to correspond with hers. Although she demanded that he stop, the manager continued to pursue her.  Eventually, the manager leased a unit in the employee’s building.