Harassment
The Terrible Effects of Harassment in the Workplace
Being subjected to regular, unrelenting harassment can form emotional scars that take years to heal, even with the help of a good therapist. While suffering from workplace harassment, it is often impossible to perform at your best at work, or to be yourself in your home and personal life. Those suffering from abject harassment from their boss or from co-workers often suffer physically disabling conditions and those in severe situations can even end up afflicted with Post Traumatic Stress Disorder, clinical depression, thoughts of suicide, panic attacks, and other debilitating forms of mental illness. Because of the wide-reaching effects of workplace harassment on an employee, the employee often ends up a broken person, without a job, with problems at home, and with serious emotional and physical issues that will take years to overcome.
What is Unlawful Harassment, and What is Not?
We all know what the plain English definition of harassment is: aggressive pressure or intimidation. Bullying, yelling, cold-shouldering, placing one under grossly unreasonable conditions, setting impossible-to-make objectives, name calling, belittling comments or conduct, offensive joking, and rude or angry behavior are all the tools of the harasser. However, what surprises many is that this conduct, without an unlawful motive, is not considered unlawful. In fact, bullying and harassment are unfortunately NOT considered unlawful in the workplace, unless it can be proved that the conduct is being directed at the employee for unlawful reasons. In short, the successful plaintiff in a harassment lawsuit will usually have to prove the harassing conduct was directed at them because they were a member of a protected class of people, or because they had engaged in some form of legally protected conduct.
Specifically, unlawful harassment in California is defined as unwelcomed comments or conduct related to membership in a protected class of people that becomes so severe or pervasive so as to fundamentally change the workplace, rendering it hostile to the employee based on their membership in a protected class.
But I Work in a Hostile Work Environment. I Surely Have Legal Protection, Don’t I?
The phrase hostile work environment is a term than many people have heard. Most assume that an employer that allows a hostile work environment to exist is breaking the law. Unfortunately, not so. Hostility in its many forms, as explained above, is not enough to create an unlawful work environment, unless the hostility directed at you is because of your membership in a protected class of people or because you engaged in some form of legally-protected conduct. Most hostile work environments are terrible places to work, but will not give you legal redress. The hostile work environment that is unlawful is the one that is hostile toward you because you are a member of a protected class of people.
So, What Kinds of Harassment are Against the Law?
Any time you are subjected to unwelcomed comments or conduct that relates to your membership in a protected class of people, the potential for a harassment claim exists. Examples include the following:
- Race, color, national origin or culture harassment, which can include harassment based on accent or cultural dress or hygiene.
- Sexual harassment which includes harassment based on sexual conduct, or gender, or gender identity or sexual preference
- Disability harassment
- Religious harassment, which can include harassment based on an employee’s closely held religious beliefs associated with clothing or worship needs or style
Will any Insensitive or Inappropriate Comments Be Enough to Prove Unlawful Harassment?
Any insensitive or inappropriate comment or act related to your membership in a protected class is worthy of report to your employer. And, it is possible that a single act of harassment could be severe enough to constitute unlawful conduct. However, generally, the acts of harassment have to reach a certain level of seriousness before they reach the point of unlawful harassment. As the EEOC says, “petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.”
The legal standard is that harassment has to be “severe or pervasive” to be actionable. Conduct that is occasional, isolated, sporadic, or trivial is not actionable. “Severe” connotes a high degree of seriousness. For instance, a single physical sexual assault in the workplace might be serious enough to constitute unlawful harassment if it is sufficiently egregious to make the employee’s work environment reach the required level of hostility. “Pervasive” means comments and conduct that are so commonplace so as to be part of the normal work environment. These concepts work together. The more severe the acts of harassment, the less often the acts have to occur to be actionable. Ultimately, whether acts of harassment reach the level of severe or pervasive is a decision for a jury to make.
Are There Special Issues Related to Sexual Harassment in the Workplace?
From the legal perspective, sexual harassment is generally no different than any other kind of unlawful harassment. All forms of harassment can have serious, long term effects on an employee, and proving harassment is very similar whether it be race, disability or sexual harassment. However, there are some special rules that relate exclusively to sexual harassment.
What is Quid-Pro-Quo Sexual Harassment?
One big difference between other forms of harassment and sexual harassment is that there are two ways to prove sexual harassment. One is the hostile work environment approach discussed earlier. The other is what is called the quid-pro-quo approach. Quid-pro-quo sexual harassment is when a supervisor or someone with power over an employee in the organization places pressure on the employee to engage in some form of sexually-related conduct in exchange for a promise to provide the employee with some advantage within the workplace. This can play out as a promise to promote, a promise not to demote, promise of a raise, or even a better place in the office, in exchange for something the harasser wants to gratify his or her desire. While sex might be the object of the harasser’s manipulation, even just playful banter or smiles and giggles might be all he or she is bargaining for. However, any time a supervisor manipulates an employee of either sex into a position where he or she feels like they have to “play ball” to maintain their place in the workplace, or to get ahead, quid-pro-quo sexual harassment is present.
Does Sexual Harassment Have to be About Wanting Sex?
Actually, sexual harassment can occur when the harasser has no interest in having sex with his or her victim. It can occur even when the harasser’s sexual preference is another gender. Sexual harassment can occur among straight males, or any other combination of genders, gender identities or sexual preferences. If the elements of harassment are present, sexual harassment does not have to be about having sex. It is more related to the unwelcomed comments or conduct related to sex, sexual preference, sexual identity or gender that become so severe or pervasive so as to fundamentally change the workplace and render it hostile toward you as a member of your protected class.
What are Some Common Examples of Sexual Harassment?
- Verbal or physical conduct of a sexual nature
- Unwanted sexual advances
- Requests for sexual favors
- Rude or crude sexual gestures
- Telling sexually explicit jokes, or sending sexually explicit cartoons or jokes via e-mail or text, or
- Making sexually suggestive comments about a worker’s clothing or body
- Touching, even if not of a sexual nature, that suggests more intimacy than you would want
What if I Played Along With the Harassment To Avoid Retaliation?
Racially-charged, sexually charged and other workplace atmospheres are so difficult to work within. You want to be a team player. You want to get along. And most of all you do not want to face retaliation for being a complainer. You just want to do your job. Many people subjected to a harassing atmosphere will outwardly play along, but inwardly suffer. This is not unusual, and it does not destroy your ability to bring a claim of harassment. Certainly it introduces issues that a good employment lawyer can address, but not immediately objecting to the conduct so that you can just get along and avoid retaliation will usually not disqualify you from making your harassment claim.
What Should I Do When Confronted with Harassment?
When a co-worker engages in sex-related conduct or comments that are unwelcomed by you, the employer must be given an opportunity to prevent further harassment. If you do not place the employer on notice of the offending conduct, it will be very hard, if not legally impossible, to hold the employer responsible for the harassment you are facing. Almost all employers have some procedure in place to report harassment. Use that procedure. If the person harassing you is your supervisor, go above his or her head in the chain of command. Many companies have a Human Resources Department. Report the conduct to that department.
When you do report, do so in writing. You want to make a very clear record of what you told the employer, so report either by email, or by a written document, and keep a copy for your records.
Also, it is important that you may need to remember sometime in the future what specifically was said and done. Therefore, it will be very helpful for you to keep a personal journal into which you put all of the information about the harassment when it happens. Include specific words spoken, locations where it occurred, witness names and any other information you think you might want to remember in the future about the events. This journal will really help you when it comes time to later remember specifically what happened, when and who was involved.
Supervisors Create Employer Liability When They Harass
As discussed earlier, when a co-worker harasses you, the employer will not be liable unless you give it a chance to correct the problem. Not so with supervisors.
The law provides that a supervisor’s harassing conduct imputes to the employer, meaning his or her actions are considered the actions of the employer. If you did not report the supervisor’s harassing conduct to the employer, the employer can still be liable for the acts of that supervisor. However, a failure to report the supervisor’s improper conduct may be used to suggest you were not really being treated badly. So reporting is important even if it is your boss.
Making a report of unlawful harassment in the workplace is considered legally protected conduct. That means that if you in good faith make a report to the company that you believe you have been subjected to inappropriate harassment, any attempt to retaliate against you for making that report becomes a separate valuable legal claim.
Shouldn’t I File a Complaint with the Government Right Away?
Most people at one time or another have heard of the EEOC and many believe the first thing that should be done if they face harassment is file a claim with the EEOC. For a California employee, that may not be the best, first thing to do.
First, the EEOC administers the federal protective statutes, and there are several. Some California employees are required to pursue their harassment claims under those federal statutes, but most California employees are far better off pursuing their claims under the State’s Fair Employment and Housing Act, administrated by the California Department of Fair Employment and Housing. Filing an administrative complaint with the DFEH is likely the better approach for most California employees. However, without competent legal guidance, you cannot know for sure which would be better for your particular matter.
Second, what you put in your administrative complaint can have far-reaching effects on your legal claim. Failing to list certain names, or certain conduct, can foreclose your right to sue. Therefore, thoroughness in the preparation of the administrative complaint, whether with the EEOC or the DFEH, is important. Without competent legal guidance with this part of the process an employee can cost themselves a great deal of money.
The best first thing to do when you face harassment in the workplace is to call an experienced employment law attorney, such as those at Pedersen Law, who can guide you through the process of making an administrative complaint. We can help you decide with which entity you should file, when the filings are required, and what should be included in the administrative complaint.
Watch your Deadline or Lose Your Rights
Filing an administrative complaint is a legal prerequisite to filing a harassment lawsuit. In some cases, you have only 300 days from the wrongful act about which you wish to complain to file an administrative complaint with the EEOC. In other cases you have only three years from the date of the wrongful conduct about which you wish to complain to file an administrative complaint with the Department of Fair Employment and Housing. Keep close track of these deadlines because if you miss them, you lose your right to sue for unlawful harassment.
What can an Experienced Harassment Litigation Attorney from Pedersen Law do For Me?
Litigating a harassment case is complicated. The attorneys representing the employer often look to directly or indirectly intimidate the harassed individual into walking away from their valuable claims for little or no money. They know the dynamics. They know you are already tired, worn-down and damaged. They play on the fact that you do not want to face more harassment in the form of a long, aggressive litigation with all of its discovery obligations and the need to re-tell the details of the story, over and over again.
When you sue a company for harassment, it is like wounding a wild animal in a corner. The employer will come out fighting with passion. You need the insulation of experienced employment counsel to protect you as best you can be from this attack.
Furthermore, most employment cases involve getting a great deal of the most damning evidence from the employer and its employees. Artful discovery methods are critical to uncover documents that exist. Experienced counsel is needed to procure the deposition testimony from employer-related witnesses that will formulate the backbone of your case.
What separates Pedersen Law attorneys from many other employment law firms out there? We have many years of experience with this law and we love to go to trial, and will never advise you settle a case to avoid going to trial. By having a reputation of being willing to try any case we take, you can benefit by the fact that eventually the majority of employers will get serious about settlement, and the best settlements occur only once the employer knows it will have to face a jury.
If you believe you have suffered the indignity of workplace harassment, contact us to discuss your case.
