Discrimination and Harassment

Laws at both the state and federal level make it illegal for employers to discriminate against their employees or harass them on the basis of many different categories. In California, the Fair Employment and Housing Act (FEHA) prohibits discrimination based on race, religion, color, national origin, ancestry, disability (whether physical or mental), medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, reproductive health decision making, pregnancy, childbirth, breastfeeding or related medical condition, or military and veteran status.

It is also unlawful for employers to discriminate against a person based on the perception that an employee is a member of a protected class, even if the employee is not, and to discrimination against a person based on that person’s association with a person who is or is perceived to be a member of a protected class. Cal. Gov. Code § 12926(o).

Employment discrimination can come in a variety of forms, including compensation or wages, failure to promote, wrongful termination, and failure to hire. Cal. Gov. Code § 12940(a). These are just some examples of discriminatory employment actions. A more complete list can be found in Section 12940(a) of the California Government Code. Adverse employment action does not have to happen all at once: a “series of subtle, yet damaging injuries” over a period of time can collectively lead to discrimination. See Horsford v. Board of Trustees of California State University, 132 Cal.App.4th 359, 374.

California law protects employees from being retaliated against when they report, complain about, or engage in other protective activity to resist discriminatory or harassing behavior. Protected activity can come in many different forms. For example, if a person opposes any conduct that is forbidden by the FEHA (such as firing or refusing to hire someone because of their race, gender, disability, or other protected characteristic), or has filed a complaint with their supervisor, Human Resources Department, or state agency alleging violations of the FEHA, they have engaged in protected activity. See California Government Code § 12940(h).

If an employee engages in some type of protected activity to oppose discriminatory or harassing conduct, then their employer cannot take adverse employment actions against them if the employee’s protected activity was a “substantial motivating reason” for the employer’s decision to do so. Common examples of adverse employment actions include termination, demotion, decrease in hours or wages, and failure to promote. However, this is not a complete list, and any action that “materially affect[s] the terms, conditions or privileges of employment” constitutes an “adverse employment action” under FEHA. See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1051-1052

Federal and state laws also protect disabled workers. These laws make it illegal to discriminate against someone on the basis of their disability. They also require employers to offer reasonable accommodations to their employees with disabilities. If an employer has terminated an employee that is disabled without having a good faith discussion as to whether they can accommodate the disability, that may violate discrimination laws.

It is illegal for an employer to harass an employee because of any protected characteristic. This always applies to harassment committed by supervisors and agents of the employer. It also applies to harassment done by other employees and even nonemployees if the employer or any of its supervisors “knows or should have known” about the harassing conduct, and the employer fails to take “immediate and appropriate corrective action” to stop the harassment. Cal. Gov. Code § 12940(j). Employers are also required to take all reasonable steps to prevent harassment from occurring, and they can be held liable for failing to do so. Cal Gov. Code § 12940(k).

Sexual Harassment

Sexual harassment is illegal in California under the California Fair Employment and Housing Act. The protections under this law extends to applicants, unpaid interns, employees, independent contractors, and professional relationships. Even though many employers now have policies that strictly prohibit all forms of sexual harassment, some supervisors or employees still violate these policies.
Courts recognize two different types of sexual harassment claims: “quid pro quo” claims and hostile work environment claims.

Quid Pro Quo Harassment

In a “quid pro quo” case, an employer engages in an adverse employment decision as a result of an employee refusing to accept a supervisor’s demands for sexual favors or sexually-charged behavior. An employee can also have a claim for “quid pro quo” sexual harassment if a supervisor coerces a subordinate to have sex under threat of termination.

Hostile Work Environment

Hostile work environment claims are generally more common. An employee establishes liability by demonstrating that he or she was subjected to hostile, offensive, or intimidating behavior that a reasonable person would consider severe or pervasive enough to alter the conditions of employment and create an abusive working environment. The victim also has to subjectively find that the harassing behavior was severe or pervasive. The conduct has to be based on sex and unwelcome, but not necessarily motivated by sexual desire. An employee also does not have to be the victim of sexual advances for there to be a valid sexual harassment claim.

Courts look at the totality of the circumstances when ascertaining if sexually harassing behavior is sufficiently severe or pervasive.. Some of these considerations include:

• The nature of the unwelcome conduct in question;
• The frequency of the offensive conduct;
• The total number of days over which this conduct occurs;
• The context in which the unwelcome conducts occurred; and
• The extent to which the conduct interferes with an employee’s work performance.

Generally, physical touching is found to be more offensive than unwelcome verbal abuse. However, harassment takes many shapes and forms.

Each case must be independently evaluated by taken various factors into consideration. For instance, if an employee is exposed to frequent derogatory language or degrading pictures creating a hostile work environment, an employee may have a claim.