Category Archives: FEHA

There are a lot of challenges in the modern world that are far beyond our control: soaring medical costs, a revolving door of financial crises, a job market squeezed by supply chain issues.  Life is hard enough without having to worry about dealing with a toxic work environment. While there’s a lot about our jobs we can’t control, thankfully, California law provides employees with some tools for dealing with toxic work environments. These tools might not always provide a quick fix, but California employees don’t have to take toxic harassment lying down.

This article will discuss some of the legal protections for California employees, and some options workers have when they lose their job due to toxic harassment at work. If you have lost your job, give Branigan Robertson’s office a call. Mr. Robertson will review your case in order to determine if he can help you pursue a claim. He does not charge a fee for the consultation.

Toxic Harassment Defined

Our office gets thousands of calls a year from employees who have been mistreated by their bosses and coworkers. Not surprisingly, many of these callers are frustrated and angry. During the consultation they use phrases like ‘toxic work environment’ or ‘hostile workplace’, often without knowing what these phrases really mean.  It’s important for California employees to understand the difference between what amounts to a violation of law, and what simply amounts to bad behavior—especially if they intend to pursue a case in court.

In California, attorneys such as Mr. Robertson generally rely on the California Fair Employment and Housing Act (FEHA), which is contained in the government code. This law mirrors federal law but has a few extra teeth. 

Section 12940 states that it is a violation of law to discriminate against an employee based on several characteristics including: gender, sexuality, race, medical condition, military status, national origin, gender identity, age (over 40), and several other characteristics.

The phrase ‘toxic harassment’ does not actually appear in the law. It’s possible the phrase is a variation of the phrase ‘hostile work environment’, which is frequently used by judges in harassment cases. Over the years, courts have determined that workplace harassment rises to the level of a hostile work environment when the harassment is so pervasive or severe that it ‘alters the conditions of employment.’

Whether or not an employee has experienced severe and pervasive harassment is one of the crucial questions attorneys like Mr. Robertson must consider before taking on a case.

The Difference Between Unfair Treatment & Illegal Treatment

My coworker has been harassing me for months. Do I have a case?

Every day our office fields calls from employees describing some variation of this scenario.

Sometimes the answer is “Yes.” Often, the answer is “No.” The reason for this is that most of the folks who call our office simply don’t have enough evidence to prove that the bad behavior they’re experiencing is tied to their inclusion in a protected class. Rather, the employee is being treated poorly because their coworker or boss is simply a jerk. Maybe someday California will outlaw jerk bosses, but for now, employees have no such luck.

What are the protected classes? The California Legislature has created eighteen categories:

1. Race,
2. Religion (religious creed),
3. Color, 
4. National origin, 
5. Ancestry, 
6. Physical disability, 
7. Mental disability, 
8. Medical condition, 
9. Genetic information, 
10. Marital status, 
11. Sex (also includes pregnancy and related medical conditions), 
12. Gender,
13. Gender identity, 
14. Gender expression, 
15. Age (if over 40 years old), 
16. Sexual orientation,  
17. Military, and 
18. Veteran status.

Hostile Work Environment Cases in the Courts

A recent case illustrating an example of  a hostile work environment involved an African American phlebotomist who filed a claim against UCLA Health. The plaintiff claimed that coworkers used offensive Spanish language terms in front of her used to describe black people.  Additionally, one employee was claimed to have used blatantly racist terms (including the N-word) when referring to the plaintiff. The plaintiff was ultimately fired. She sued under FEHA. Though her original judgment was reduced slightly on appeal, a Santa Monica jury initially awarded her $1.5 million.

In a case from the 1980s, a jury awarded a woman who worked for AT&T more than $3 million for the harassment she suffered under a male boss. In that case, the boss was transferred to the location where the plaintiff worked and immediately began flirting with her. One night he insisted she join him at dinner. Fearing she couldn’t refuse; the woman joined her boss at dinner where she was presented with flowers. Her boss discussed his unsatisfactory sex life, and at one point reached over to play with the woman’s earring. The woman reported the incident to her direct supervisor, but nothing was done about it. In the ensuing weeks and months, the woman saw her job duties taken away from her one by one until she had nothing left to do.  A jury agreed that the harassment she suffered rose to a level severe enough to alter the work environment.

How to Decide if its Time to Call an Attorney

There are some simple things to ask yourself if you believe you are in a toxic or hostile work environment:

• Are you experiencing harassment because you are a member of a protected class (i.e., race, religion, gender, sexuality, sexual identity, skin color, military status, age, or other)?
• Is the harassment verbal (racial epithets, unwanted sexual comments, racist or sexual jokes, intimidating or threatening statements, slurs etc.)?
• Is the harassment physical (unwanted touching, blocking your path, physical intimidation, other physical interference with your normal work duties etc.)?
• Is the harassment nonverbal (leering, intimidating stares, vulgar or intimidating gestures)?
• Have you been terminated or otherwise retaliated against after complaining about harassment?

If you answered yes to the above, or a combination of the above, it might be time to have your situation reviewed by an experienced attorney.

What if You Haven’t Been Terminated Yet?

Generally, attorneys like Mr. Robertson don’t pursue a lawsuit until a termination has occurred. Obviously, this is little comfort to those who are in the middle of being harassed. If you find yourself in a toxic work environment, there are still steps you can take to protect yourself — even if you haven’t been terminated. 

You should consider writing a brief complaint to HR (or the appropriate office authority) about the offensive behavior. If you are terminated after writing such a complaint, you will have a stronger claim should you decide to go to court.  For more information on how to complain to HR the right way, check out this YouTube video Mr. Robertson made.

Call Our Office for a Free Consultation

If you believe you are experiencing toxic harassment at work, call the office of Branigan Robertson to schedule a consultation. While Mr. Robertson doesn’t offer free employment advice, there is no fee to review your case. If he believes he can help, he will generally take your case on a contingency basis. This means you don’t pay out of pocket, but rather pay with a portion of your settlement or judgment.