January 7, 2019
On June 14, 2017, a Los Angeles County jury awarded $17.4 million to a Los Angeles sanitation worker for discrimination and harassment he suffered in the workplace because he was perceived as gay. Among other things, his supervisors circulated Photoshopped portraits of the worker (who is married to a female) showing him in a same-sex relationship with a co-worker. When he complained about the harassment, he was accused of falsifying time documents and was fired. After filing a complaint with the L.A. Board of Civil Service Commission, he was eventually reinstated to his job but was assigned to a lower-paying shift, was given a supervisor who had circulated the Photoshopped pictures of him to his co-workers, and was faced with more bogus accusations of misconduct. He ended up on permanent disability for medical issues caused by the harassment. [www.latimes.com/local/lanow/la-me-ln-city-discrimination-verdict-20170615-story.html.]
What is Harassment?
Harassment is a form of unlawful employment discrimination. Many employers think it means sexual harassment . Actually, sexual harassment is only one type of prohibited harassment. Under California law, harassment occurs whenever:
- An employee is subjected to verbal or physical conduct that denigrates or shows hostility or aversion toward a person because of that person’s (or that person’s relatives’, friends’, or associates’) race, color, religious creed, national origin, ancestry, sex, gender, gender identity, gender expression, sexual orientation, physical disability, mental disability, medical condition, age, marital status, genetic information, military status, or veteran status, all classifications protected by the Fair Employment and Housing Act (FEHA);
- The complaining employee views the conduct as unwelcome; and
- The conduct has the purpose or effect of creating an intimidating, hostile, or offensive work environment.
What constitutes an intimidating, hostile, or offensive environment is based on what a “reasonable person” in the same position as the employee would consider. An intimidating, hostile, or offensive working environment can be proven based on a single incident, or on a pattern of conduct. Factors taken into consideration are:
- Severity – How bad was the conduct?
- Frequency – How pervasive is it?
- Whether it interferes with the employee’s work performance.
- Whether it affects the employee’s psychological well-being.
Regarding sexual harassment (and only sexual harassment), there is a second type of harassment, known as “quid pro quo” sexual harassment. Quid pro quo harassment occurs when a manager or supervisor conditions a job, promotion, or other job benefit on sexual favors by the employee. Sexual harassment differs from gender harassment, though both relate to a person’s gender. Gender harassment need not involve sexual conduct of any kind. Gender harassment involves conduct, whether blatant or subtle, that discriminates against a person solely because of that person’s gender or perceived gender.
Complying with Harassment Laws, and Reporting Violations
As a matter of public policy, the FEHA recognizes the need to protect the right and opportunity of all persons to seek, obtain, and hold employment free from unlawful discrimination (including harassment). [Gov. Code §§ 12920 and 12940(g) – (k).] As a result, California employers have an affirmative and mandatory legal duty to prevent harassment. [Gov. Code § 12940(k).] Employers must promptly investigate harassment claims to meet their obligation of ensuring a discrimination-free work environment. [Metters v. Ralphs Grocery Co. (2008) 161 Cal.App. 4th 696.]
California employers are also required by law to have an anti-harassment policy in place, and to disseminate that policy to their employees. This anti-harassment policy should include a procedure for reporting harassment claims without fear of retribution.
The FEHA sets out detailed procedures that must be followed by an employee when seeking a remedy for an unlawful employment practice. Before filing a court claim for harassment, an employee must exhaust all available administrative remedies by filing a verified complaint of harassment with the California Department of Fair Employment & Housing (“DFEH”). [Gov. Code § 12960 et seq.; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.] An employee has only one year from the time of the discriminatory action to file the administrative complaint, with certain exceptions. [Gov. Code § 12960(d).]
Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net). Please visit our website at eskridge.hv-dev.com.
This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.